FEDERAL COURT OF AUSTRALIA

SS v Australian Crime Commission [2009] FCA 580

ADMINISTRATIVE LAW – validity of determination by Board of the Australian Crime Commission – whether within ambit of the Australian Crime Commission Act 2002 (Cth) – whether determination exceeded powers of the Board of the Australian Crime Commission

ADMINISTRATIVE LAW – validity of summons issued by the Australian Crime Commission – whether examiner satisfied it was reasonable to issue the summons – whether failure to record in writing the reasons for the issue of the summons a breach of s 25D of the Acts Interpretation Act 1901 (Cth) – whether examiner’s reasons a recent invention – whether summons issued in accordance with the Australian Crime Commission Act 2002 (Cth) – whether summons otherwise defective 

PRACTICE AND PROCEDURE – public interest immunity – redaction of documents – effect on burden of proof – consequences of allegedly unjustifiable failure to discover relevant documents – whether defence should be struck out

PRACTICE AND PROCEDURE – further submissions after close of oral argument – requirement for leave

Held: application dismissed

Acts Interpretation Act 1901 (Cth)

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Australian Crime Commission Act 2002 (Cth)

Australian Crime Commission Amendment Act 2004 (Cth)

Evidence Act 1995 (Cth)

Federal Court of Australia Act 1976 (Cth)

AB Pty Ltd v Australian Crime Commission [2009] FCA 119

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223

Barnes v Boulton (2004) 139 FCR 356; [2004] FCA 1219

British American Tobacco Australia Services Ltd v Cowell (2002) 7 VR 524; [2002] VSCA 197

Brookfield v Yevad Products Pty Ltd [2004] FCA 1164

Carr v Finance Corporation of Australia Ltd (No 1) (1980) 147 CLR 246

CC Pty Ltd v Australian Crime Commission (No 2) (2007) 66 ATR 39; [2007] FCA 16

CC Pty Ltd v Australian Crime Commission (2007) 159 FCR 282; [2007] FCAFC 96

Church of Scientology Inc v Woodward (1982) 154 CLR 25

Clark v State of New South Wales (2006) 66 NSWLR 640; [2006] NSWSC 673

D v Australian Crime Commission (2006) 152 FCR 497; [2006] FCA 660

Freeman v Medical Practitioners Board of Victoria [2000] VSC 547

Fuji Xerox Australia Pty Ltd v Lee [2003] QSC 303

Hill v Woollahra Municipal Council & Ors (2003) 127 LGERA 7; [2003] NSWCA 106

Industrial Equity Ltd v Deputy Commissioner of Taxation (1990) 170 CLR 649

Jones v Dunkel (1959) 101 CLR 298

Londish v Gulf Pacific Pty Ltd (1993) 45 FCR 128

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21

P v Australian Crime Commission (2006) 151 FCR 114; [2006] FCAFC 54

Parramatta City Council v Hale (1982) 47 LGRA 319

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28

Re Application by the Chief Commissioner of Police (Vic) (2005) 214 ALR 422; [2005] HCA 18

State of Queensland v Central Queensland Land Council Aboriginal Corporation (2002) 125 FCR 89; [2002] FCAFC 371

Williams v Spautz (1992) 174 CLR 509

X v Australian Crime Commission (2004) 139 FCR 413; [2004] FCA 1475

Cross on Evidence. Australian edition. LexisNexis Butterworths (online service, service 117, last updated April 2009)

Pearce D C and Geddes R S. Statutory Interpretation in Australia. 6^th ed. LexisNexis Butterworths. Sydney (2006)

SS v AUSTRALIAN CRIME COMMISSION and JEFFREY PHILIP ANDERSON

NSD 50 of 2009

JAGOT J

29 MAY 2009

SYDNEY

THE COURT ORDERS THAT:

1.         The application be dismissed.

2.         Subject to order 3 below, the applicant pay the respondents’ costs, as agreed or taxed.

3.         Reserve the applicant’s costs of preparation for and the hearing between 11.30 am and 12.45 pm on 24 April 2009 with respect to the first respondent’s (withdrawn) application for leave to reopen and reserve the costs of the applicant’s notice of motion filed 25 May 2009 and heard on 29 May 2009.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1                          By a summons dated 14 January 2009 issued under s 28(1) of the Australian Crime Commission Act 2002 (Cth) (the ACC Act) the second respondent, an examiner of the Australian Crime Commission (the ACC), required a person (later given the pseudonym “SS”) to attend before an examiner at an examination for the purposes of a special operation pursuant to a determination of the ACC’s Board.  The summons annexed a copy of the Australian Crime Commission Special Intelligence Operation Authorisation and Determination (Amphetamine Type Stimulants and New Synthetic Drugs) 2007 (the ATS determination) and the Australian Crime Commission Special Intelligence Operation Authorisation and Determination (Amphetamine Type Stimulants and New Synthetic Drugs) Amendment No 1 of 2008 (the ATS determination amendment 2008). 

2                          By an amended application filed on 26 March 2009 the applicant, SS, challenged the validity of the ATS determination, the ATS determination amendment 2008 and the summons. 

SOME KEY STATUTORY PROVISIONS

3                          Sections 7C, 24A and 28 are key provisions of the ACC Act relating to the making of a determination and the issuing of a summons to appear at an examination.

4                          Section 7C of the ACC Act concerns the functions of the Board of the ACC (established by s 7B) and provides as follows:

(1)        The Board has the following functions:

(a)     to determine national criminal intelligence priorities;

(b)     to provide strategic direction to the ACC and to determine the priorities of the ACC;

(c)     to authorise, in writing, the ACC to undertake intelligence operations or to investigate matters relating to federally relevant criminal activity;

(d)     to determine, in writing, whether such an operation is a special operation or whether such an investigation is a special investigation;

(e)     to determine, in writing, the class or classes of persons to participate in such an operation or investigation;

(f)      to establish task forces;

(g)     to disseminate to law enforcement agencies or foreign law enforcement agencies, or to any other agency or body of the Commonwealth, a State or a Territory prescribed by the regulations, strategic criminal intelligence assessments provided to the Board by the ACC;

(h)     to report to the Inter-Governmental Committee on the ACC's performance;

(i)      such other functions as are conferred on the Board by other provisions of this Act.

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

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

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

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

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

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

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

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

5                          Section 24A of the ACC Act provides that an examiner (being a person appointed under s 46B(1)) may conduct an examination for the purposes of a “special ACC operation/investigation” (defined by s 4(1) by reference to determinations of the Board).  Section 28 vests a power in an examiner to summons people to appear before an examiner at an examination and is in these terms:

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

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

(a)     before the issue of the summons; or

(b)     at the same time as the issue of the summons; or

(c)     as soon as practicable after the issue of the summons.

(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 of the Board that the intelligence operation is a special operation or that the investigation into matters relating to federally relevant criminal activity is a special investigation.

(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.

(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 any of the following provisions does not affect the validity of a summons under subsection (1) of this section:

(a)     subsection (1A) of this section, in so far as that subsection relates to the making of a record;

(b)     subsection (2) of this section;

(c)     section 29A, in so far as that section relates to a summons under subsection (1) of this section.

6                          Under s 30 of the ACC Act a failure to attend as required by a summons and answer questions is an offence punishable by a fine not exceeding 200 penalty units and/or imprisonment for a period not exceeding five years.

7                          As the following summary of SS’s grounds of challenge disclose, there are many other provisions of the ACC Act which bear upon the issue of validity.  I deal with those provisions in my reasons considering the individual grounds of challenge.

GROUNDS OF CHALLENGE

8                          SS’s grounds of challenge may be summarised as follows:

The ATS determination - making

(1)                    In making the ATS determination at its meeting on 5 December 2007 the Board did not consider or misconstrued its powers in that: - (i) there is no evidence that the Board had before it a draft of the ATS determination at its meeting on 5 December 2007, and (ii) the minutes of the Board’s meeting (insofar as produced in a heavily redacted version – a subject of separate complaint by SS) disclose that all the Board did on 5 December 2007 was “establish” a determination.

(2)                    The Board’s resolution of 5 December 2007 (as disclosed in the redacted minutes) does not accord with the requirements of s 7C of the ACC Act in that it is not a resolution which: - (i) purports to authorise the ACC to undertake an intelligence operation (s7C(1)(c)), (ii) determines in writing that the operation is a special operation (s7C(1)(d)), (iii) determines in writing the class or classes of persons to participate in such an operation (s7C(1)(e)), or (iv) considers whether methods of collecting criminal information and intelligence that do not involve the use of powers in the ACC Act have been effective (s7C(2)).

(3)                    It should be inferred that, in making the ATS determination, the Board was not satisfied as required by s 7C(2) of the ACC Act.

(4)                    It should be inferred that, in making the ATS determination, the Board did not comply with s 7C(1)(e) of the ACC Act.

(5)                    It should be inferred that, in making the ATS determination, the Board did not give any consent with respect to activities relating to crimes under State laws in accordance with ss 55A(3) and (5A) of the ACC Act.

(6)                    In breach of the obligation imposed by s 25D of the Acts Interpretation Act 1901 (Cth) the minutes of the meeting on 5 December 2007 do not record the Board’s findings on material questions of fact or refer to the evidence or other material on which those findings were based.

The ATS determination - provisions

(7)                    The purported purposes of the operation stated in paragraph 9 of the ATS determination exceed the Board’s powers as: - (i) the ACC Act distinguishes between “investigations” and “intelligence operations”, (ii) sub-paragraphs 9(a), (b) and (c) of the ATS determination disclose that the Board has confused the two activities which Parliament has deliberately kept separate, (iii) sub-paragraph 9(d) deals with matters forming no part of either an investigation or intelligence operation, and (iv) the scope and content of sub-paragraph 9(d)(i) cannot be discerned.

(8)                    Paragraph 11 of the ATS determination does not satisfy the requirements of s 55A(3) and (5A) of the ACC Act.

(9)                    Paragraph 3(c)(xiv) in Schedule 1 to the ATS determination contravenes s 7C(4)(a) of the ACC Act.

The ATS determination – amendment

(10)                  The ATS determination amendment 2008 made on 3 December 2008, purporting to extend the operation of the ATS determination from 31 December 2008 until 31 December 2009, is invalid as the related Board resolution of 3 December 2008 was made in breach of s 7C of the ACC Act and beyond the power of the Board.

The summons

(1)                    If the ATS determination is invalid then the summons is also invalid because it was issued in breach of ss 24A and 28(2) of the ACC Act

            Otherwise:

(2)                    It should be inferred that, in issuing the summons, the examiner was not (and could not have been) satisfied that it was reasonable in all the circumstances to issue the summons and thus the examiner did not comply with s 28(1A) of the ACC Act and abused the power of the statute in issuing the summons.

(3)                    The examiner failed to record in writing (or failed adequately to do so) the reasons for the issue of the summons in breach of s 25D of the Acts Interpretation Act.

(4)                    It should be inferred that the examiner’s reasons are a recent invention or that the reasons have been tampered with.

(5)                    It should be inferred that, in issuing the summons, the examiner erred with respect to the obligations imposed by s 29A(2) of the ACC Act.

(6)                    The summons is defective on its face as: - (i) the summons does not require SS to attend at an examination to give evidence in a capacity as a witness to federally relevant criminal activity within the meaning of the ACC Act, and (ii) the statement of rights and obligations under s 29B of the ACC Act which was annexed to the summons does not set out a person’s rights and obligations under s 29B(3) or 29B(4) of the ACC Act as required.

9                          SS also made an overriding submission that the documents produced by the ACC (redacted based on extensive claims of public interest immunity) should not have been so redacted in some circumstances.  Further, the ACC called no evidence from members of the Board or the examiner.  While SS accepted that SS bore the onus of proof, SS claimed that this high-handed and unjustifiable approach of the ACC assisted SS in discharging that burden.  SS reiterated and enlarged these submissions in relation to a notice of motion SS filed on 25 May 2009 seeking leave to rely on further submissions.  I also deal with that notice of motion below.

THE ATS DETERMINATION

Ground 1

10                        Section 7(1) of the ACC Act establishes the ACC.  By s 7(2) the ACC consists of the Chief Executive Officer of the ACC (the CEO), the examiners and members of the staff of the ACC.  The ACC has the functions specified in s 7A, which is in the following terms:

The ACC has the following functions:

(a)        to collect, correlate, analyse and disseminate criminal information and intelligence and to maintain a national database of that information and intelligence;

(b)        to undertake, when authorised by the Board, intelligence operations;

(c)        to investigate, when authorised by the Board, matters relating to federally relevant criminal activity;

(d)        to provide reports to the Board on the outcomes of those operations or investigations;

(e)        to provide strategic criminal intelligence assessments, and any other criminal information and intelligence, to the Board;

(f)        to provide advice to the Board on national criminal intelligence priorities;

(g)        such other functions as are conferred on the ACC by other provisions of this Act or by any other Act.

11                        As noted, s 7B establishes the Board and s 7C specifies the Board’s functions.  Under s 7D the Chair of the Board may convene Board meetings.  Section 7E provides that the Chair presides over the Board’s meetings.  Under s 7F a quorum at a Board meeting is constituted by seven Board members not including the CEO.  Section 7G regulates voting at Board meetings.  Relevantly, questions before the Board are determined by a majority of the members present (s 7G(1)).  The person presiding at the meeting has a casting vote if necessary.  Under s 7G(4):

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

12                        Section 7J concerns resolutions outside of Board meetings.  Provided that the requisite number of Board members indicate that they are in favour of a resolution referred to all members (without the resolution being considered at a meeting of the Board), s 7J(2) provides that “(t)he resolution is as valid and effectual as if it had been passed at a meeting of the Board duly convened and held”.

13                        As the first aspect of this ground of challenge, SS submitted that there was no evidence that the Board had before it a draft of the ATS determination at its meeting on 5 December 2007.  The submission assumes that, in order to discharge the functions vested in it by ss 7C(1)(c), (d) and (e), the Board must have before it a draft document which constitutes the proposed authorisation and determinations.  The ACC Act does not so provide.  It requires only that the relevant authorisation and determinations be “in writing” and otherwise satisfy the conditions expressed by the statute.  Even if the ACC Act did impose such a requirement, there is ample evidence from which it should be inferred that the Board had a draft of the ATS determination before it at its meeting on 5 December 2007. 

14                        First, there is a single page document which states the following:

BOARD-IN-CONFIDENCE

BOARD OF THE AUSTRALIAN CRIME COMMISSION

SECRETARIAT

ACC Board Meeting 4/2007

1.00-4.00pm, 5 December 2007

Canberra ACC Office

…

AGENDA ITEMS

15                        This document attaches an unsigned and undated copy of the ATS determination.

16                        I accept SS’s submission that the mere fact of the attachment of the draft ATS document to the single page document does not establish that the draft ATS determination was before the Board on 5 December 2007.  Nevertheless, under s 183 of the Evidence Act 1995 (Cth), the Court may draw any reasonable inference from a document in determining a question about the applicability of any provision of that Act.  It is reasonable to infer from the face of this document that it forms part of the records of the ACC for the purpose of its business and that the representations it contains are (at least) on the basis of information directly or indirectly supplied by a person who had, or might reasonably be supposed to have had, personal knowledge of the asserted facts within the meaning of s 69 of the Evidence Act.  Accordingly, it may be inferred from the document (without regard to the annexure) that, at the meeting on 5 December 2007, the Board had before it a Board paper concerning “Determination Application: Amphetamine Type Stimulants (ATS) and New Synthetic Drugs Special Intelligence Operation”.

17                        To this evidence may be added a second document.  The parts of this document not masked include the following statements:

BOARD IN CONFIDENCE

BOARD OF THE AUSTRALIAN CRIME COMMISSION

SECRETARIAT

ACC Board Meeting 4/2007

5 December 2007

Record of Meeting

Participants

In Canberra

Commissioner Mick Keelty, Australian Federal Police [Chair]

…

Apologies

…

Secretariat and Support

…

Item 1:        Opening of Meeting by Chair

The Chair opened the meeting at 1pm.

…

Item 10:       Determination application: Amphetamine Type Stimulants (ATS) and New Synthetic Drugs

…

The Board unanimously agreed to close the AOSD determination and establish an ATS and New Synthetic Drugs determination at 1.38 pm.

…

The Chair closed the meeting at 3.04 pm.

18                        Consistent with the reasoning at [16] above in respect of ss 183 and 69 of the Evidence Act, it may be inferred from this document that, at the meeting on 5 December 2007, the Board had before it information relating to a “Determination application: Amphetamine Type Stimulants (ATS) and New Synthetic Drugs”.

19                        Finally, the impugned ATS determination itself records that:

The Board of the Australian Crime Commission made this instrument under section 7C of the Australian Crime Commission Act 2002 by resolution at 1.38pm on 5 December 2007.

20                        Following this statement (in which the time and date are in handwriting) a signature appears above the words “Chair of the Board of the Australian Crime Commission” with another reference to the date of 5 December 2007. 

21                        Amongst other paragraphs, the ATS determination includes paragraphs 4 and 6 as follows:

4          Authorisation

Pursuant to paragraph 7C(1)(c) and subsection 7A(c) of the Act, the ACC is authorised to undertake the intelligence operation mentioned in Schedule 1 relating to federally relevant criminal activity until 31 December 2008.

…

6          Determination

Pursuant to paragraph 7C(1)(d) and subsection 7C(2) of the Act, the Board:

(a)        has considered whether methods of collecting criminal information and intelligence that do not involve the use of powers in the Act have been effective; and

(b)        determines that the intelligence operation mentioned in Schedule 1 is a special operation.

22                        As noted, the ATS determination amendment 2008 amended the date in paragraph 4 of the ATS determination to 31 December 2009.

23                        Again, the reasoning above in respect of ss 183 and 69 of the Evidence Act applies to the ATS determination. 

24                        SS relied on a minute relating to a subsequent Board meeting on 3 December 2008, which expressly refers to a resolution “in terms of the draft instrument Australian Crime Commission Special Intelligence Operation Authorisation and Determination (Amphetamine Type Stimulants and New Synthetic Drugs) Amendment No. 1 of 2008 provided to the Board in the agenda papers for this item”, to support its submission that there was no evidence that the Board had before it a draft of the ATS determination at its meeting of 5 December 2007.  This is in contrast to the minutes of the meeting of 5 December 2007, the disclosed parts of which merely state the Board agreed to “establish” a determination in relation to amphetamine type substances and new synthetic drugs.  SS’s argument is unpersuasive.  There may be many reasons why the Board used a different form of words at its meetings of 5 December 2007 and 3 December 2008 only one of which would be consistent with SS’s contention.  That contention has to be assessed against all of the available evidence identified above.

25                        SS’s submissions provide do not provide a cogent reason for the ATS determination itself not being evidence that the Board made the ATS determination at 1.38pm on 5 December 2007.  Contrary to the submissions for SS, that inference is overwhelming from the face of the ATS determination as supported by the agenda and minutes.  From this it also may readily be inferred that at its meeting on 5 December 2007 the Board had before it the draft ATS determination which, upon being signed and dated by the Chair of the Board, became the ATS determination.  SS’s submission that there is no evidence to support this inference is thus unsustainable.

26                        A similar conclusion must be reached about the second aspect of this ground of challenge (that the minutes of the Board’s meeting disclose that all the Board did on 5 December 2007 was “establish” a determination).  Presumably, SS’s emphasis on the word “establish” is intended to distinguish that function from “resolving”, in light of the scheme of the ACC Act providing for the Board to discharge its business by voting at and outside meetings as referred to in ss 7D to 7H and 7J respectively. 

27                        The submission, however, is misconceived for at least two reasons. 

28                        First, the provisions of the ACC Act dealing with meetings of the Board do not state that, in order to be effective, a decision of the Board must identify itself as a resolution.  The minutes of the 5 December 2007 meeting disclose that the Board unanimously agreed to establish an ATS and New Synthetic Drugs determination at 1.38pm.  Even without the ATS determination, which expressly identifies itself as an instrument made under s 7C of the ACC Act “by resolution at 1.38pm”, the words “the Board unanimously agreed to …establish an ATS and New Synthetic Drugs determination at 1.38pm” are apt to record a determination of the Board within the meaning of s 7G(1) of the ACC Act.  To conclude otherwise is to elevate form over substance without any justifiable basis.  SS’s submissions provide no persuasive basis for a contrary conclusion. 

29                        Second, when the terms of the ATS determination are taken into account, the inference that the Board resolved to make the ATS determination on 5 December 2007 is unavoidable. 

30                        SS attempted to make something of the difference between the words “made this instrument…” in the ATS determination and the requirement that the Board authorise and determine in writing relevant actions under s 7C.  Again, this approach lacks merit.  For the reasons given above, the only inferences which should be drawn are that: - (i) the Board had before it the draft ATS determination at its meeting on 5 December 2007, (ii) the Board decided at that meeting to give the authorisation and make the determination as set out in the terms of the ATS determination (paragraphs 4 and 6), and (iii) the Board recorded its decisions both in the minutes and by the Chair signing and dating the ATS determination.  Both the minutes and the ATS determination are “in writing”.  The requirements of ss 7C(1)(c) and (d) for an authorisation and determination to be in writing are thus satisfied. 

31                        As Mansfield J noted in CC Pty Ltd v Australian Crime Commission (No 2) (2007) 66 ATR 39; [2007] FCA 16 at [26] the ACC Act “does not specify at all how the Board must ‘determine, in writing’ that an operation or investigation is a special operation or special investigation”.  Mansfield J held that the draft instrument became the Board’s determination in writing on the passing of the vote to adopt the instrument (at [33]).  The Full Court dismissed an appeal against Mansfield J’s decision (CC Pty Ltd v Australian Crime Commission (2007) 159 FCR 282; [2007] FCAFC 96).  SS’s attempt to find a point of distinction in the present case (namely, that there was no draft instrument before the Board and thus could be no resolution adopting the draft instrument so as to satisfy the requirement for a determination in writing) cannot succeed in the face of the evidence discussed above.  The evidence, particularly the terms of the impugned ATS determination itself, establishes that the Board determined the ATS determination in writing, in accordance with that instrument, on 5 December 2007. 

Ground 2

32                        This ground of challenge is based on an impermissible premise.  Section 7C empowers the Board to authorise and determine certain matters in writing.  In deciding whether the Board validly exercised any of those powers the Court must consider all available evidence.  The Board’s minute papers (the focus of this ground of challenge) are but one source of evidence.  Adopting SS’s approach of determining whether the Board has discharged its function in accordance with s 7C by looking only at the Board’s minutes, incorrectly assumes that s 7C of the ACC Act imposes some requirement on the Board to make resolutions (or, more precisely, record resolutions in minutes) in particular terms.  The section says nothing about the Board making resolutions or recording minutes.  It requires an authorisation or determination to satisfy the conditions of the applicable provisions.  In this case, the ATS determination records in writing an authorisation and certain determinations.  Whether the authorisation and determinations in the ATS determination meet the statutory requirements is to be determined on all available evidence, including the terms of the ATS determination itself.

33                        The ATS determination, on its face, is signed and dated by the Chair of the Board.  It bears a time and date identical to that referred to in the minutes.  It bears a title readily referable to the terms used in the minutes (“an ATS and New Synthetic Drugs determination”).  In other words, the ATS determination is cogent evidence of the Board’s decision on 5 December 2007. 

34                        The ATS determination records in writing an authorisation (paragraph 4) and a determination (paragraph 6) in precisely the terms required by ss 7C(1)(c) and (d) of the ACC Act.  It also contains a paragraph recording a determination in writing about the class of persons to participate in the investigation, being paragraph 10 as follows:

10        Classes of persons to participate in operation

Pursuant to paragraph 7C(1)(e) of the Act, the classes of persons to participate in the intelligence operation are those mentioned in Schedule 2.

35                        For these reasons SS’s second ground of challenge cannot be upheld.  It is not to the point that the minutes of the Board’s meeting do not, in terms, record the matters identified by SS.  There is no requirement in s 7C that the minutes do so.  The issue is whether the Board did or did not authorise and/or determine matters in accordance with ss 7C(1)(c), (d) and (e).  The minutes, read with the agenda and the ATS determination, prove that the Board authorised in writing in accordance with paragraph 4 of the ATS determination and determined in writing in accordance with paragraphs 6 and 10 of the ATS determination. 

36                        The same reasoning must be applied to the last aspect of this ground of challenge.  SS submitted that the Board’s resolution (or, more accurately, minutes) was not to the required effect that the Board considered the matter specified in s 7C(2) of the ACC Act.  The answer to this submission is that s 7C(2) does not impose any obligation on the Board to record the fact of its consideration (see, to the same effect, X v Australian Crime Commission (2004) 139 FCR 413; [2004] FCA 1475 at [21] and P v Australian Crime Commission (2006) 151 FCR 114; [2006] FCAFC 54 at [22]-[23]). 

37                        Section 7C(2) provides that the Board may determine in writing that an intelligence operation is a special operation (as referred to in s 7C(1)(d)).  Section 7C(2) imposes a condition precedent on such a determination in writing, namely, that the Board consider whether methods of collecting the criminal information and intelligence that do not involve the use of powers in the ACC Act have been effective.  The onus is on SS to prove any failure of consideration to the civil standard.  SS must do so “in accordance with proper legal requirements and by inference not suspicion” (Parramatta City Council v Hale (1982) 47 LGRA 319 at 345). 

38                        Paragraph 6(a) of the ATS determination records that the Board “has considered whether methods of collecting criminal information and intelligence that do not involve the use of powers in the Act have been effective”.  There is no proper reason not to treat paragraph 6 as evidence of the Board’s discharge of its functions under s 7C(2) of the ACC Act.  The use of the past tense “has considered” supports the inference that the consideration occurred before the determination, as s 7C(2) requires. 

Ground 3

39                        SS submitted that, by necessary implication, s 7C(2) requires the Board to find that methods of collecting criminal information and intelligence not involving the use of powers in the ACC Act had not been effective before the Board may determine that an intelligence operation is a special operation. 

40                        To understand the context in which this submission is made it is necessary to identify further provisions of the ACC Act.  Section 4(1) defines certain terms:

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

federally relevant criminal activity means:

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

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

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

(ii)     has a federal aspect.

federal aspect , in relation to an offence against a law of a State, has the meaning given by subsection 4A(2).

relevant crime means:

(a)     serious and organised crime; or

(b)     Indigenous violence or child abuse.

41                        “Serious and organised crime” is also a defined term in s 4(1).  Further, s 4(2) provides that:

(2)     If the head of an ACC operation/investigation suspects that an offence (the incidental offence ) that is not a relevant crime may be directly or indirectly connected with, or may be a part of, a course of activity involving the commission of a relevant crime (whether or not the head has identified the nature of that relevant crime), then the incidental offence is, for so long only as the head so suspects, taken, for the purposes of this Act, to be a relevant crime. 

42                        “Special operation” is not defined.  However, the following terms are:

ACC operation/investigation means:

(a)     an intelligence operation that the ACC is undertaking; or

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

special ACC operation/investigation means:

(a)     an intelligence operation that the ACC is undertaking and that the Board has determined to be a special operation; or

(b)     an investigation into matters relating to federally relevant criminal activity that the ACC is conducting and that the Board has determined to be a special investigation.

43                        The Board’s determination that an intelligence operation is a special operation is significant.  Other powers specified in Divs 1A and 2 of Pt II of the ACC Act depend on the existence of a special ACC operation/investigation.  Specifically, s 24A, the power of an examiner to conduct an examination, may be exercised only “for the purposes of a special ACC operation/investigation”. 

44                        SS submitted that paragraph 6 of the ATS determination did not record a finding by the Board that methods of collecting criminal information and intelligence not involving the use of powers in the ACC Act had not been effective; accordingly, it should be inferred that the Board did not comply with the requirements of s 7C(2).  SS supported this submission by reference to the width of intrusive powers consequential upon a determination that an intelligence operation is a special operation (citing AB Pty Ltd v Australian Crime Commission [2009] FCA 119 at [54]-[58]).  The width of those powers, said SS, meant that the Board was obliged to create a determination in writing which, on its face, disclosed the Board’s careful consideration and finding that methods not using the powers under the ACC Act had not been effective.  Paragraph 6 of the ATS determination, however, was nothing more than a “formulaic recitation” of the provisions of the ACC Act itself.

45                        The difficulty with these submissions is that they attempt to convert an obligation on the Board to consider a relevant matter into an obligation to make and record in writing a particular finding.  Section 7C(2) simply does not impose that obligation.  It may be accepted that the Board’s classification of an intelligence operation as a special operation results in the availability of powers that have the “very real potential to intrude upon the liberty and privileges of an individual” (AB Pty Ltd at [18]).  That fact means that the provisions related to those powers will be construed according to their terms so that “no greater power is in fact exercised than the words employed by the legislature permit” (AB Pty Ltd at [19]).  However, this principle of construction does not allow a court to convert an obligation to consider a particular matter into an obligation more onerous than Parliament has seen fit to impose. 

46                        SS’s criticism of paragraph 6(a) of the ATS determination as nothing more than a formulaic recitation of s 7C(2) is unfounded.  Section 7C(2) requires the Board to consider a particular matter and paragraph 6 records the Board’s consideration of precisely that matter.  In other words, the Board had its statutory obligations at the forefront of its (collective) mind. 

47                        SS sought to invoke an inference against the ACC on the basis that it had not called evidence from members of the Board about their consideration, relying on Jones v Dunkel (1959) 101 CLR 298.  Drawing any such inference against the ACC would be inappropriate in the circumstances of this case.  As explained in Cross on Evidence. Australian edition. LexisNexis Butterworths (electronic service, service 117, last updated April 2009) at [1215] the rule only applies where a party is “required to explain or contradict something” and cannot be used “to convert conjecture and suspicion into inference”.  In the present case paragraph 6 of the ATS determination records the Board’s consideration of the very matter which the ACC Act required.  Recourse to Jones v Dunkel, in these circumstances, cannot assist SS.  The ACC was entitled to rely on the documentary evidence.  It had no obligation to call any person to give evidence and the onus never shifted from SS.

48                        Insofar as SS submitted that the Board had to explain the basis for its findings, it is sufficient to make two observations.  First, the ACC Act imposes no such obligation.  Second, I deal with SS’s submissions based on s 25D of the Acts Interpretation Act under ground 6 below.

Ground 4

49                        This ground of challenge turns on the fact that Schedule 2 to the ATS determination (referred to in paragraph 10 as identifying the class or classes of persons to participate in the intelligence operation) is as follows:

Schedule 2      Classes of persons

                        (section 6)

1       The CEO.

2       Each person who is:

(a)        a member of the staff of the ACC; and

(b)       identified in writing by the CEO, or a delegate of the CEO, as a person whose duties include providing services in relation to ACC operations and investigations.

3       Each person who is:

         (a)        an officer or member of the staff of any of the following agencies:

(i)      an agency of which a Board member is head (other than the CEO) in his or her capacity as a Board member;

(ii)     the Australian Taxation Office;

(iii)     AUSTRAC;

(iv)    the Department of Immigration and Citizenship;

(v)     the Department of Health and Ageing;

(vi)    the New South Wales Crime Commission;

(vii)    the Queensland Crime and Misconduct Commission; and

(b)        identified in writing by the head of that agency, or a delegate of that head, as a person whose duties include providing services in relation to ACC operations and investigations.

…

Post Signature Note: The cross reference “(section 6)” under the heading “Classes  of Persons” above is a typing error and should read “(section 10)” referring to section 10 of the instrument where Schedule 2 is specified.  This error does not affect the validity of the instrument.

50                        SS submitted that the words in brackets under the heading to the Schedule (that is, “(section 6)”) are in error.  The correct cross-reference to the body of the determination would read “(section 10)”.  SS observed that the provenance of the post-signature note had not been explained.  The post-signature note acknowledges the error in Schedule 2.  SS said that the “basis upon which it is asserted that the ‘error’ doesnot affect the validity of” the ATS determination is “nowhere explained”.  Further, that this error was indicative of the Board’s lack of care and failure to consider its functions as required by law.

51                        These submissions cannot withstand scrutiny.  Even if the post-signature note is disregarded, it is clear that the cross-reference to section 6 is an error.  SS’s submission failed to identify any reason why a mere error in a cross-reference should in any way affect the validity of the ATS determination.  SS cited no authority to support the submission.  Precedent and common sense would dictate to the contrary.  As to precedent, see, for example, the many decisions referred to in Pearce D C and Geddes R S. Statutory Interpretation in Australia. 6^th ed. LexisNexis Butterworths. Sydney (2006) at [2.24].  As to common sense, it is obvious that the sole purpose of the cross-reference is to assist the reader to find the principal provision of the ATS determination to which Schedule 2 relates.  Parliament could not have intended that a mere erroneous cross-reference of this character would have the effect of invalidating the instrument (Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [91]-[93]). 

52                        SS’s submission that the erroneous cross-reference somehow shows a sufficient lack of care to support the inference that the Board failed to have proper regard to its statutory obligations is also misconceived.  The error is either one of drafting or typographical.  The fact that the Board did not identify and correct this minor error before making its determination is of no legal significance.  SS’s submission to the contrary is unrealistic. 

53                        SS also challenged the scope of cll 2(b) and 3(b) in Schedule 2 (being a person identified in writing by the CEO, or a delegate of the CEO, as a person whose duties include providing services in relation to ACC operations and investigations).  SS asserted that these items impermissibly sought to delegate to persons other than the Board the power to identify persons authorised to participate in an intelligence operation.  Moreover, the purported delegation operates prospectively and thus is not limited to persons having the relevant duties at the time the ATS determination was made.  SS acknowledged that Mansfield J dismissed a submission to the same effect in D v Australian Crime Commission (2006) 152 FCR 497; [2006] FCA 660.  SS, however, did not identify any argument indicating why Mansfield J’s conclusions in D v Australian Crime Commission should not be followed.  I adopt the conclusion set out in [58] of D v Australian Crime Commission and the preceding reasons Mansfield J gave in support, namely:

I do not consider that s 7C(1)(e) requires a determination in terms that, upon its making all the persons who may participate in a particular ACC operation or investigation are then immediately capable of identification.  There is no reason why that should be so.  Such a construction would not reflect the operational reality that generally the direct selection of the staff of the ACC (other than the CEO and of examiners) is not carried out by the Board of the ACC.  Section 7C(1)(e) does not impose that task upon the Board.  It is required to address the class or classes of persons who may participate in a particular ACC operation or investigation.  It did so.  By its determination, at any point in time those who were to participate in the relevant special investigation could be identified.

Ground 5

54                        Sections 55A(3) and (5A) of the ACC Act provide as follows:

(3)        The ACC cannot, under a law of a State:

(a)     investigate a matter relating to a relevant criminal activity; or

(b)     undertake an intelligence operation;

unless the Board has consented to the ACC doing so.

(5A)     The CEO or an examiner cannot perform a duty or function, or exercise a power, under a law of a State:

(a)     relating to the investigation of a matter relating to a relevant criminal activity; or

(b)     relating to the undertaking of an intelligence operation;

unless the Board has consented to the CEO or the examiner doing so.

55                        Paragraph 11 of the ATS determination is in these terms:

11        Consent to conferral of State powers

(a)        Pursuant to subsections 55A(3) of the Act the Board consents to the ACC conducting an intelligence operation as described in Schedule 1 under a law of a State as presently, or from time to time applies, and this consent shall continue through the currency of those intelligence operations.

(b)        Pursuant to subsection 55A(5A) of the Act, the Board consents to the performance of a duty or function, and the exercises of a power, of a kind described in subsection 55A(5A) of the Act:

(i)         presently conferred; or

(ii)        from time to time conferred;

on the CEO or examiners of the ACC by a law of a State, in relation to this intelligence operation, and this consent shall continue through the currency of the operation.

56                        SS contended that paragraph 11 gave rise to a number of problems. 

57                        First, SS said that there was doubt about the intelligence operation in question because paragraph 11(a) refers to both “an intelligence operation” and “those intelligence operations”.  There is no such doubt.  The meaning of the paragraph is clear.  The closing words of paragraph 11(a), “those intelligence operations”, do no more than recognise that Schedule 1 to the ATS determination identifies a range of matters within the scope of the intelligence operation and that the intelligence operation to which consent has been granted will inevitably involve numerous activities or “operations”.  Moreover, SS has failed to identify why any aspect of this submission would affect the validity of the ATS determination.  An ambiguity, if it existed, would be resolved by construing the instrument, not declaring it invalid.

58                        Second, SS said that paragraph 11 did not identify any “law of a State” or “duty, function or power” within the meaning of ss 55A(3) and (5A) of the ACC Act.  Those sections, according to SS, require the Board to identify a particular law of the State and a particular duty, function or power the subject of the Board’s consent.  This is said to flow from s 55A(1) which refers only to “certain” duties, functions and powers under State laws and the references in s 55A(3) to “a” law of a State and s 55A(5A) to “a” duty, function or power.  These words contemplate consent to the particular duty, function or power in question rather than some form of blanket consent as paragraph 11 purports to authorise. 

59                        I do not accept this submission.  Section 55A embodies a scheme.  Section 55A(2) grants the legislative consent contemplated by s 55A(1) to confer powers on the ACC under State laws with respect to the nominated matters.  Section 55A(3) ensures that the ACC cannot investigate a matter relating to a relevant criminal activity or undertake an intelligence operation unless the Board has consented.  These activities are within the scope of the legislative consent in s 55A(2) and ensure that the Board maintains control over these activities.  Sections 55A(4) and (5) relate (respectively) to the conferral by a law of a State of a power, function or duty on the nominated bodies and persons with respect to an investigation of a relevant criminal activity and undertaking of an intelligence operation.  Section 55A(5A) ensures that two of those nominated persons (the CEO and an examiner) cannot exercise such a power, function or duty under a law of a State unless the Board has consented.

60                        The references to “a law of a State” and “a duty, function or power” take the same meaning in each provision.  Section 55A(2) does not identify particular State laws.  Nor is there any basis for suggesting it needed to do so.  “A law of a State” means what it says.  Any law of a State, if it concerns the relevant duties, functions or powers may confer those duties, functions or powers on the ACC.  The relevant “duties, functions or powers” in question are those identified in ss 55A(2)(a)-(d).  Those duties, functions or powers limit the extent of the legislative consent to conferral on those bodies and persons identified in s 55A(1).  The same proposition applies to ss 55A(3) and (5A).  There is no justification in the language of either provision to conclude that the Board’s consent may relate only to a specified State law. 

61                        Nor is SS’s submission about particular duties, functions and powers persuasive.  Sections 55A(3) and (5A) identify the relevant duties, functions and powers in terms (that is, investigating a matter relating to a relevant criminal activity and/or undertaking an intelligence operation).  In other words, the “certain” duties, functions and powers with which s 55A(1) is concerned are those duties, functions and powers listed in s 55A(2).  The use of the indefinite article “a” before each of the references to “a law of a State” and “duty, function or power” does not support SS’s submission.  To the contrary, the indefinite article indicates that the identity of the law of the State is not required before the Board may consent and that the consent may relate to any law of a State which confers the nominated duties, functions or powers.  SS has not advanced any textual, purpose or policy basis which supports the contrary construction.  Given that the nominated duties, functions and powers provide the substance of the consent, the purpose of nominating the laws of the individual States in question (presumably by reference to the name and section number of the statutes) is not apparent. 

62                        Third, SS contended that the consent in paragraph 11 of the ATS determination was invalid because it purported to grant consent to an intelligence operation under laws of a State not yet in existence.  SS’s submissions described this as a prospective abdication of the Board’s responsibilities. 

63                        The Full Court of the Federal Court considered whether a Ministerial determination could have ambulatory operation in State of Queensland v Central Queensland Land Council Aboriginal Corporation (2002) 125 FCR 89; [2002] FCAFC 371.  Beaumont J observed that the question was always one of construction of the enabling legislation (at [72]).  Nothing in the language of s 55A suggests that the Board cannot consent to the ACC, the CEO and examiners undertaking activities relating to the particular intelligence operation under all relevant laws of a State as in force from time to time until the intelligence operation is complete.  Accordingly, and consistent with Beaumont J’s conclusion (at [84]) about the statutory provision in question in Central Queensland Land Council Aboriginal Corporation, there is no express prohibition to be found in ss 55A(3) or (5A) against the Board granting consent to the exercise of duties, functions and powers under existing or future State laws and there is no basis for making such an implication. 

64                        Fourth, SS submitted that the minutes did not disclose the Board of the ACC having granted any consent in accordance with ss 55A(3) or (5A) of the Act.  SS did not, however, identify any obligation on the Board to record its consent in the minutes.  The Act does not impose any such obligation.  If SS’s observation is intended to suggest that it should be inferred that the Board did not grant its consent because of the lack of any reference in the minutes, the suggestion must be rejected.  The ATS determination records the Board’s consent in paragraph 11.  In circumstances where, as noted, the ATS determination is signed and dated in accordance with the reference in the minutes, the inference should be drawn that the Board consented in the terms which paragraph 11 records. 

65                        It follows that SS’s challenge to the validity of paragraph 11 of the ATS determination cannot be sustained.

Ground 6

66                        This ground of challenge is based on s 25D of the Acts Interpretation Act.  Section 25D is in these terms:

Where an Act requires a tribunal, body or person making a decision to give written reasons for the decision, whether the expression “reasons”, “grounds” or any other expression is used, the instrument giving the reasons shall also set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based.

67                        SS contended that the requirement for the Board to determine in writing the matters referred to in ss 7C(1)(d) and (e) and 7C(2) of the ACC Act attracts the obligation in s 25D so that the Board must set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based when exercising those powers.  According to SS, the obligation to “determine, in writing” imposed by the provisions requires something more than the mere recording of the result (referring to Freeman v Medical Practitioners Board of Victoria [2000] VSC 547 at [24]-[27] and cases cited therein).  The expression “determine, in writing”, SS said, is analogous to the words “reasons” and “grounds” in s 25D of the Acts Interpretation Act.  As the minutes did not disclose the Board’s findings on material questions of fact or refer to the evidence or other material on which those findings were based, the ATS determination was invalid.

68                        The difficulty with these submissions is that the provisions on which SS relied do not impose any obligation on the Board to give “reasons”, “grounds” or any other explanation for the making of the determinations under ss 7C(1)(d) or (e) or 7C(2).  The Board’s obligation is simply to “determine, in writing” the relevant matters.  Contrary to SS’s submission there is no basis for concluding that these words mean “something more” than they say.  It follows that these sections do not require the Board to give reasons for the making of the determination in issue.  Section 25D of the Acts Interpretation Act, accordingly, does not apply to these functions.

Ground 7

69                        By this ground SS claimed that paragraph 9 of the ATS determination exceeds the Board’s powers.  This argument involves the following steps: - (i) paragraph 4 of the ATS determination authorises the undertaking of an intelligence operation, (ii) this is the function specified in s 7A(b) of the ACC Act (which refers to the undertaking of intelligence operations), (iii) paragraph 6 of the ATS determination purports to declare the intelligence operation to be a special operation, (iv) section 4(1)  of the ACC Act defines intelligence operation (“the collection, correlation, analysis or dissemination of criminal information and intelligence relating to federally relevant criminal activity”), (v) the ACC Act does not define “investigation” but it must mean something different from intelligence operation, as the Act distinguishes between the two in ss 7A(b) and (c), 7C(1)(c) and (d) and 7C(2) and (3), (vii) having regard to the ordinary meaning of “investigation” it should be accepted that an intelligence operation involves a higher level of abstraction than an investigation, with the intelligence operation meaning the collection, correlation, analysis or dissemination of criminal information and intelligence relating to federally relevant criminal activity and an investigation meaning a systematic examination in order to identify and build a case against the perpetrator of an activity, (vii) paragraph 9 of the ATS determination must be tested for validity having regard to this difference between an intelligence operation (as purported to be authorised) and an investigation (which is not authorised), and (viii) in any event, paragraph 9 discloses many other textual difficulties.

70                        It is true that ss 7C(1)(c), (d), 7C(2) and (3) refer to determinations with respect to operations and investigations (and special operations and special investigations).  Moreover, the relevant considerations for special operations and special investigations are different (for the former, the Board must consider whether methods of collecting the criminal information and intelligence that do not involve the use of powers in the ACC Act have been effective, whereas for the latter the Board must consider whether ordinary police methods of investigation into the matters are likely to be effective).  Nevertheless, SS’s principal submission depends on the functions of undertaking an intelligence operation and an investigation not only being different, but also mutually exclusive.  The provisions of the ACC Act do not support that conclusion. 

71                        Section 4(1) of the ACC Act defines the following terms

ACC operation/investigation means:

(a)     an intelligence operation that the ACC is undertaking; or

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

special ACC operation/investigation means:

(a)     an intelligence operation that the ACC is undertaking and that the Board has determined to be a special operation; or

(b)     an investigation into matters relating to federally relevant criminal activity that the ACC is conducting and that the Board has determined to be a special investigation.

72                        The fact that the key definitions in the ACC Act deal with operations and investigations in this way in the definitions section is a strong indicator against SS’s assumption that there may be no overlap between an intelligence operation and an investigation.  Section 7A also specifies functions which inevitably overlap.  For example, s 7A(a) is based on the definition of intelligence operation in s 4(1).  Yet s 7A(b) refers expressly to the undertaking of intelligence operations.  Similarly, s 12, which regulates the performance of the ACC’s functions, imposes obligations by reference to an ACC operation/investigation.  To the same effect, the powers relating to search warrants in s 22 and of examiners to conduct an examination under s 25A exist in connection with a special ACC operation/investigation. 

73                        In other words, the provisions of the ACC Act recognise that the functions of undertaking an intelligence operation and an investigation overlap.  It follows that SS’s approach to paragraph 9 of the ATS determination, which involves labelling certain activities as part of an “investigation” and thereby assuming that the activity also cannot be authorised by an “intelligence operation”, is misconceived.  In considering the validity of paragraph 9 it is necessary to give “intelligence operation” its defined meaning, with all the generality the words of that definition permit, and without imposing any assumption that the scope of those words is to be implicitly restricted to exclude anything that might otherwise form part of the activity of an “investigation”.  It is also necessary to give effect to s 19 of the ACC Act, which is in these terms:

The ACC has power to do all things necessary to be done for or in connection with, or reasonably incidental to, the performance of its functions, and any specific powers conferred on the ACC by this Act shall not be taken to limit by implication the generality of this section.

74                        With these considerations in mind I turn now to SS’s specific challenges to paragraph 9.

(1)                    SS claimed that paragraph 9(a) departs materially from the definition of intelligence operation.  It refers to “relevant crime” instead of “relevant criminal activity”.  The ATS determination, however, does not identify any relevant crimes.  Schedule 1 identifies only general circumstances and allegations said to constitute relevant criminal activity.

            Section 4(1) of the ACC Act defines “federally relevant criminal activity” by reference to the definition of “relevant criminal activity”, “relevant criminal activity” by reference to the definition of “ “relevant crime” and “relevant crime” by reference to the definitions of “serious and organised crime” and “Indigenous violence or child abuse”.  Section 46(1)(b) of the Acts Interpretation Act applies so that words used in the ATS determination have the same meaning as in the ACC Act.  The fact that these definitions are related is implicitly recognised by s 7C(4) of the ACC Act.

            In this context, the use of “relevant crime” in paragraph 9(a) instead of “federally relevant criminal activity”, as referred to in the definition of “intelligence operation”, is immaterial.  The “relevant crime” is the crime identified in item 3 of Schedule 1.  SS’s submission that it is “impossible to know the content or scope of the purpose” identified in paragraph 9(a) is not borne out by the language of the paragraph construed in context.

(2)                    SS claimed that the collection, analysis and dissemination of information and intelligence relating to “relevant crime” can only be undertaken in the course of an “investigation” and not as part of an “intelligence operation”.

            This submission depends on SS’s assumption, rejected above, that the concepts of an investigation and an intelligence operation are mutually exclusive.  For the reasons given I do not accept that the collection and analysis of criminal information and intelligence relating to the relevant crime within the meaning of paragraph 9(a) of the ATS determination falls outside the scope of the Board’s power to authorise an intelligence operation and determine that the operation is a special operation. 

(3)                    SS claimed that paragraph 9(b) contains the same two “vices”.

            For the reasons given above, I do not accept that paragraph 9(b) of the ATS determination is affected by any vice.  Apart from the general submission that the ACC Act distinguishes between an intelligence operation and investigation, SS has not advanced any cogent argument to support the conclusion that identifying persons involved in crime and the nature of their involvement is not part and parcel of collecting, correlating and analysing criminal information and intelligence relating to federally relevant criminal activity.  Nor is any such argument apparent on the ordinary meaning of the words “collection, correlation, and analysis” as they appear in the definition of “intelligence operation”.  SS’s reference to paragraph 9(c) (which refers to recommendations about “suggested investigative responses by the ACC”) does not support SS’s argument.  The mere fact that the Board has identified one purpose in those terms does not provide any justification for reading down the ordinary meaning of the other purposes.  Again, SS’s submissions incorrectly assume that each part of paragraph 9 must be read as if its scope is exclusive of each other part.  There is no reason to adopt that construction. 

(4)                    SS claimed that paragraph 9(d) (about the making of recommendations about law reforms) both uses the same confused terms (relevant crime instead of federally relevant criminal activity) and has nothing to do with an intelligence operation. 

            I have dismissed the first aspect of this submission above.  As to the second, SS’s submission disregards the fact that the ACC’s functions include reporting to the Board on outcomes of its operations and investigations (s 7A(d)) and extend to things reasonably incidental to the performance of its functions (s 19).  Further, the Board’s functions include recommendations for law and related reform in terms substantially the same as those set out in paragraph 9(d) (s 12(3) of the ACC Act).  In these circumstances the inclusion of paragraph 9(d) in the ATS determination did not exceed the Board’s powers of authorisation and determination under s 7C of the ACC Act.

75                        For these reasons I do not accept SS’s challenge to paragraph 9 of the ATS determination or any consequential effect of paragraph 9 on the validity of the ATS determination as a whole.

Ground 8

76                        SS’s arguments about the validity of paragraph 11 of the ATS determination were the same as SS’s arguments under ground 5 about the drawing of an inference that the Board had not granted its consent in accordance with ss 55A(3) and (5A) of the ACC Act.  I reject those arguments for the same reasons as set out at [54] – [65] above.

Ground 9

77                        Paragraph 3(c)(xiv) in Schedule 1 of the ATS determination refers to:

such other incidental offences as the head of this ACC special operation suspects may be directly or indirectly connected with, or may be a part of, a course of activity involving the commission of any of the offences referred to in paragraphs (a) or (b);

78                        Paragraphs 3(a) and (b) refer to:

(a)        the unlawful importation, manufacture, production, sale, supply, trafficking, or possession of ATS and new synthetic drugs;

(b)        importation, manufacture, supply, trafficking, or possession of substances, materials, documents and equipment for the manufacture, production,. Sale, supply or trafficking referred to in paragraph (a);

79                        As already noted, s 7C(4) of the ACC Act provides as follows:

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

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

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

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

80                        SS submitted that paragraph 3(c)(xiv) in Schedule 1 of the ATS determination involves an attempt by the Board to delegate (impermissibly and prospectively) the obligation imposed on the Board by s 7C(4)(a) of the ACC Act to identify the circumstances and allegations known or believed by it at the time of making the ATS determination to constitute federally relevant criminal activity.  Paragraph 3(c)(xiv), submitted SS, is not a sub-set of some circumstance or allegation already identified.  Rather, the paragraph purports to expand the circumstances and allegations to an unknown extent, in the discretion of the head of the ACC special operation, and without any oversight by the Board.

81                        SS’s submissions about this aspect of the ATS determination fail to grapple with the terms of s 4(2) of the ACC Act.  Section 4(2) provides that:

If the head of an ACC operation/investigation suspects that an offence (the incidental offence) that is not a relevant crime may be directly or indirectly connected with, or may be a part of, a course of activity involving the commission of a relevant crime (whether or not the head has identified the nature of that relevant crime), then the incidental offence is, for so long only as the head so suspects, taken, for the purposes of this Act, to be a relevant crime.

82                        In other words, through s 4(2), Parliament itself has vested power in the head of an ACC operation to form the relevant suspicion about an incidental offence in which event the incidental offence, for so long as the suspicion remains, is a relevant crime.  Paragraph 3(c)(xiv) of Schedule 1 of the ATS determination does nothing more than reflect the terms of s 4(2) of the ACC Act.  In light of s 4(2) of the ACC Act, the inclusion of paragraph 3(c)(xiv) in Schedule 1 of the ATS determination cannot constitute an impermissible delegation, let alone a delegation having the effect of invalidating the determination itself.

Ground 10

83                        SS submitted that the ATS determination amendment 2008 was invalid as the Board’s resolution of 3 December 2008 contravened s 7C of the ACC Act and exceeded the Board’s powers.  SS, however, did not identify any separate argument supporting the invalidity of the ATS determination amendment 2008. 

84                        The agenda for the Board meeting of 3 December 2008 discloses that there was a paper before the Board relating to “ATS-extension”, being item 7.5.  The minutes disclose an entry as follows:

Item 7.5:         ATS and New Synthetic Drugs SIO extension application

…

The resolution was considered and passed at 2.24pm.

…

Resolution 4.16/2008: ATS and New Synthetic Drugs SIO extension application.

The Board:

…

–           resolved, in terms of the draft instrument Australian Crime Commission Special Intelligence Operation Authorisation and Determination (Amphetamine Type Stimulants and New Synthetic Drugs) Amendment No.1 of 2008 provided to the Board in the agenda papers for this item, to authorise the ACC to continue to undertake a special intelligence operation until 31 December 2009, at which time it will be further reviewed.

85                        As noted, the ATS determination amendment 2008 replaces the date “31 December 2008” in paragraphs 4 and 5 of the ATS determination with the date “31 December 2009”.

86                        To the extent that SS’s claim of invalidity relates to the grounds of challenge to the ATS determination before its amendment, those grounds have been rejected above.  SS did not identify any other ground in support of its challenge.  Accordingly, there is no basis to support any declaration of invalidity of the ATS determination amendment 2008.

THE SUMMONS

Ground 1

87                        SS’s first ground of challenge depends on the invalidity of the ATS determination or ATS determination amendment 2008.  As neither challenge has succeeded, the summons cannot be invalid on this ground.

Grounds 2 and 3

88                        In these grounds of challenge (which are related) SS submitted that the examiner, in issuing the summons, contravened s 28(1A) of the ACC Act as the examiner could not have been satisfied in all of the circumstances that it was reasonable to issue the summons.  SS developed this argument by the following steps: - (i) s 25D of the Acts Interpretation Act applies to an examiner issuing a summons because s 28(1A) requires the examiner to “record in writing the reasons for the issue of the summons”, (ii) consistent with the observation in AB Pty Ltd at [54], persons “against whom the powers conferred by the …[ACC] Act are exercised are entitled to have confidence that the power is being lawfully invoked”, (iii) further, and as also observed in AB Pty Ltd at [58], “(w)here the reasons of an examiner are available, it is considered that they should be carefully construed. Given the width of the powers conferred upon an examiner, a responsible exercise of those powers would require that the reasons disclose on their face that the examiner has given careful consideration to both the nature of the power being exercised and the circumstances of the case before him”, (iv) in the present case, the reasons (but not the statement of facts and circumstances) have been produced.  The ACC has excised the majority of the statement of facts and circumstances in reliance on its claim of public interest immunity, (v) the examiner’s reasons are deficient, being strikingly similar to the standard form reasons criticised in AB Pty Ltd at [54], (vi) the reasons in the present case, however, do not include a notation in accordance with s 29A(1) of the ACC Act, and (vii) accordingly, although the summons contains such a notation, there is no evidence the examiner turned his or her mind to the requirements of s 29A(1) of the ACC Act.

89                        The ACC did not concede the application of s 25D of the Acts Interpretation Act (contrary to its position in AB Pty Ltd at [54] in which it was accepted that s 25D of the Acts Interpretation Act applied to s 29(1A) of the ACC Act relating to the production of documents).  The ACC was not bound to adopt the same position in the present case.  Moreover, the ACC’s reliance in the present case on the decision of Barnes v Boulton (2004) 139 FCR 356; [2004] FCA 1219 provides a sound basis for its different position.  In Barnes v Boulton Finn J rejected a claim that s 28(1A) of the ACC Act required an examiner to give a copy of his or her reasons to the person the subject of the summons.  Finn J said:

[26] Though s 28(1A) imposes on an examiner the obligation to create a record of his or her reasons for decision, it does not require the examiner to provide that record to a person summoned. Section 28(2) does specify information that is to be provided to such a person with the summons (ie a copy of the ACC Board’s determination), but it notably makes no reference to providing the record of reasons. As evidenced by s 28(3), the section demonstrates an understandable sensitivity about the provision of information, even on the face of the summons, that would “prejudice the effectiveness of the special ACC operation/investigation”.

…

[28] It is important to note that the present application is not one for judicial review of the examiner’s decision. Rather it asserts an entitlement to be provided with Mr Boulton’s record of reasons - an entitlement the satisfaction of which is said to be a precondition to the holding of the examination. The short answer to the claim is that s 28(1A) in its setting gives no such right expressly and there is no conceivable basis in this context for implying such a right: cf R v Young (1999) 46 NSWLR 681 at 686 ff; let alone for making the provision of such reasons a jurisdictional precondition to the holding of an examination. Neither context nor legislative purpose: cf Network Ten Pty Ltd v TCN Channel Nine Pty Ltd (2004) 205 ALR 1 at [11]; and see generally Spigelman, “The poet’s rich resource: Issues in statutory interpretation” (2001) 21 Aust Bar Rev 224; lend any support to such an implication.

[29] The legislative judgment not to provide a right to reasons can only be regarded as deliberate, the more so as the ACC Act contemplates that decisions under this Act may be the subject of an application under the ADJR Act [Administrative Decisions (Judicial Review) Act 1977 (Cth)]: s 57; but the ADJR gives no right to reasons under s 13 for such decisions. The clear purpose of s 28(1A) is both to focus and enhance decision making and to provide an accountability mechanism by requiring the creation of an “audit trail”. Under s 59 of the Act, that record is potentially available on request to the portfolio Minister and to the Parliamentary Joint Committee on the Australian Crime Commission that is constituted under Pt III of the ACC Act: and see ss 54 and 55 for that Committee’s powers and duties. As is not uncommon with investigative agencies, the Parliament has counterbalanced the secrecy regime it has erected to ensure the effectiveness of the ACC’s investigations with a measure of public accountability through a dedicated parliamentary oversight committee: see eg Intelligence Services Act 2001 (Cth). A right such as the applicant propounds would be an alien presence in such a statutory scheme.

90                        Section 25D of the Acts Interpretation Act depends on the existence of an obligation to “give” written reasons.  Section 28(1A) of the ACC Act obliges an examiner to “record” his or reasons but, as Finn J held in Barnes v Boulton, imposes no obligation on the examiner to give those reasons to the person summonsed to appear at an examination.  Moreover, and as Finn J also noted, s 13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth), imposing the obligation to give reasons for certain decisions, does not apply to decisions under the ACC Act in connection with intelligence operations or investigations of State offences that have a federal aspect (sub-paragraph (ea) of Schedule 2 to the Administrative Decisions (Judicial Review) Act).  Sub-paragraph (ea) of Schedule 2 was inserted by Schedule 2 to the Australian Crime Commission Amendment Act 2004 (Cth).  There is no warrant to depart from the ordinary meaning of s 28(1A) of the ACC Act, namely, that the examiner has an obligation to record his or her reasons, but no obligation to give those reasons to the person summonsed.  On this basis, s 25D of the Acts Interpretation Act does not apply to the examiner’s function under s 28(1A) of the ACC Act.

91                        Even if, contrary to my view, s 25D of the Acts Interpretation Act applies, SS has not explained how any failure to comply with s 25D could lead to the summons being invalid.  Section 28(8) of the ACC Act (which SS mentioned in passing but failed to deal with in any meaningful way) provides that:

A failure to comply with any of the following provisions does not affect the validity of a summons under subsection (1) of this section:

(a)     subsection (1A) of this section, in so far as that subsection relates to the making of a record;

(b)     subsection (2) of this section;

(c)     section 29A, in so far as that section relates to a summons under subsection (1) of this section.

92                        If the failure to make a record cannot affect the validity of the summons then it necessarily follows that the deficiency of such a record also cannot affect the validity of the summons.  To conclude otherwise would be contrary to the express will of Parliament embodied in s 28(8) of the ACC Act.  Accordingly, insofar as SS’s submissions under these grounds related to the alleged deficiency of the reasons per se as a source of invalidity of the summons, the submissions must be rejected.

93                        SS also alleged that, from the inadequate reasons and the ACC’s maintenance of its claim for public interest immunity privilege over the statement of facts and circumstances (which I upheld), I should infer that the examiner could not have been satisfied that it was reasonable to issue the summons, with the consequence that the issue of the summons was an abuse of process.  SS said that it was solely within the power of the ACC to produce the statement of facts and circumstances and thus prove that the statement supported the examiner’s reasons but the ACC had refused to do so.

94                        SS’s submissions are misconceived.  First, the ACC was entitled to make a claim for exclusion from evidence the whole, or part, of any document relating to matters of state where the ACC considered the public interest in its admission was outweighed by the public interest in preserving secrecy or confidentiality in relation to the information or document (s 130 of the Evidence Act).  The ACC made that claim in the present case over much of the material relevant to its decisions and supported that claim by affidavit evidence.  On the basis of the affidavit evidence, I upheld the claim for public interest immunity.  The inevitable consequence of that is that the documents on which the proceeding must be resolved are incomplete.  But that fact does not alter SS’s onus.  Nor does it warrant the drawing of an inference that the information in the documents over which the claim for public interest immunity has been upheld would not support the ACC.  Consistent with the discussion about Jones v Dunkel at [47] above, to draw that inference would involve converting SS’s mere “conjecture and suspicion” into inference, which is impermissible.  In other words I must decide the case on the available evidence.

95                        Second, SS’s submissions appear to preference conjecture and suspicion over the evidence which is available.  The examiner’s record of reasons includes the following statements:

MATERIAL FACTS

I had regard to the following material for the purposes of being satisfied under subsection 28(1A) of the Australian Crime Commission Act 2002 (Cth) (the Act) that it was reasonable in all the circumstances to issue the summons:

(a) A statement of facts and circumstances dated 13 January 2009 and

(b) Legal submissions dated 13 January 2009.

CONSIDERATION

Based upon my consideration of the statement of facts and circumstances and the legal submissions referred to above;

1)         I was satisfied that the operation was within the terms of the Determination and that the Determination was still operative.

2)         I was satisfied that it was reasonable in all the circumstances that the Summons be issued to the person.

3)         I was satisfied that it was reasonable in all the circumstances that the Summons be issued in the terms approved by me.

4)         I was satisfied that the summons does, so far as is reasonably practicable, set out the general nature of the matters in relation to which it is intended to question the person.

5)         I was satisfied that, in the particular circumstances of the special ACC operation to which the examination relates, it would prejudice the effectiveness of the special ACC operation for the summons to state beyond that which it does the general nature of the matters in relation to which the examiner intends to question the person.

6)         I was satisfied that this was an appropriate Summons for the inclusion of a notation pursuant to subsection 29A(1) of the Australian Crime Commission Act 2002, in the terms approved by me, because if such annotation were not included it would reasonably be expected to prejudice the effectiveness of the operation and that as failure to do so might be contrary to the public interest.

96                        The legal submissions attached to the statement of facts and circumstances dated 13 January 2009 conclude with the statement that:

In all these circumstances it is submitted that it is reasonable for the Examiner to issue a summons to the witness under subsection 28(1) of the Act.

97                        Given these statements SS’s argument that the Court should infer to the contrary, at least on this ground, appears to rise no higher than a bare assertion that the examiner did not in fact reach the state of satisfaction he said he reached.  I do not accept the argument.  No reason has been advanced not to take the examiner’s statement of satisfaction at face value.  It must also be remembered that Flick J’s admonition in AB Pty Ltd at [58] was followed by the conclusion at [59] that the deficiencies in the examiner’s reasons were insufficient to invalidate the notice.  In the present case, similarly, SS has not discharged the onus of establishing that the examiner failed to form the relevant state of mind.  Nor has SS pointed to any consideration which the examiner was bound, but failed, to consider in deciding to issue the summons.  Accordingly, these grounds of challenge to the summons also fail.

Ground 4

98                        This ground, which alleges that the examiner’s reasons are a recent invention or have been tampered with, fails on the facts and the law.

99                        As to the facts, SS’s argument is that the summons states that it was issued at 10.35am on 14 January 2009.  The examiner’s reasons record the “date of issue of summons” as “14 January 2009” on the first page.  On the second page, under the signature of the examiner, the record of reasons states:

Recorded at 10.33am on January 2009

100                      In other words, the date in January 2009 is missing from the statement under the examiner’s signature. 

101                      Further, the pseudonym “SS” was allocated to this matter only on the commencement of the proceeding on 20 January 2009.  Yet the examiner’s record, purported to be created before the issue of the summons, contains the following statements:

SUMMONS IS ISSUED TO: ………….. [SS]

…

PURPOSE OF SUMMONS

The purpose of the Summons is to require the attendance of ................... [SS] (‘the person’) before an Examiner for the following reason:…

102                      SS submitted that the use of the pseudonym “SS”, with the lack of a date under the examiner’s signature and any evidence called by the ACC to explain the anomalies, established that the reasons are either a recent invention or have been tampered with after the examiner signed the reasons.  According to SS, the result is that it should be inferred that the examiner was not satisfied that it was reasonable in all the circumstances to issue the summons, could not have been so satisfied, and that the issue of the summons was an abuse of process.

103                      There are at least three problems with these submissions.  First, even if the examiner created or amended the reasons after the issue of the summons, SS has failed to explain how that fact alone could invalidate the summons given the express words of s 28(8)(a) of the ACC Act.  Second, there is a considerable distance between a document exhibiting anomalies and a conclusion that a document is the result of some (implicitly) improper conduct.  Third, SS has not explained why it is proper to use the alleged anomalies in the document as a basis for drawing an inference that the examiner was not satisfied that it was reasonable in all the circumstances to issue the summons or could not have been so satisfied or otherwise concluding that the issue of the summons was an abuse of process. 

104                      As to the first problem, s 28(8)(a) specifies that the validity of a summons is not affected by s 28(1A) insofar as that section relates to the making of a record.  Consistent with the approach in Project Blue Sky at [91]-[93], in the case of the examiner making a record under s 28(1A), Parliament has provided an answer to the question “whether it was a purpose of the legislation that an act done in breach of the provision should be invalid”.  The answer is that Parliament did not intend invalidity to follow from any such contravention.

105                      As to the second problem, the alleged anomalies are by no means as suspect as SS’s submissions suggested.  The fact that the date is missing from beneath the signature is a mere omission in circumstances where: - (i) the reasons record the date of the issue of the summons as 14 January 2009, and (ii) the summons states that it was issued at 10.35am on 14 January 2009.  The ACC also relied on an affidavit of Andrew James Cann, the ACC’s acting chief information officer with responsibility for the ACC’s information communication technology systems.  According to Mr Cann, the ACC’s computer system shows that the document was first stored at 11.03.59 am on 14 January 2009 and has not been amended since.  From Mr Cann’s evidence I am satisfied that “first stored” should be understood as a reference to the function of saving the document to disk so that it may thereafter be retrieved.  As Mr Cann said, a document may be created on a computer screen before it is saved or stored to disk. 

106                      The fact that the copy of the document produced to SS and the Court for the purpose of the proceedings has the name of the recipient of the summons blacked out and the pseudonym “SS” inserted in square brackets is most likely a consequence of the Court’s order under s 50 of the Federal Court of Australia Act 1976 (Cth) made at the request of the parties on the first return date of the application.  Given this order, the anomaly is not so much the appearance of “SS” in the document instead of the recipient’s name but, rather, the fact that any amendment to the document made via the ACC’s computer system should have been recorded as such by the system and thus disclosed by Mr Cann’s evidence.  I cannot resolve that anomaly on the evidence.  Nor can I be certain as to the cause of the amendment.  Nevertheless, I can say that, contrary to SS’s submission and as explained in my third point at [107] below, I do not accept that the circumstances lead to the conclusions SS advocated.

107                      As to the third problem, given that the reasons are signed and record the examiner’s state of satisfaction that it was reasonable to issue the summons, it is not apparent to me why SS’s allegations that the reasons were created or amended after the issue of the summons (if true) would lead to the inference that the examiner was not so satisfied before issuing the summons.  Once the pejorative terms “recent invention” and “tampering” are put to one side, it is difficult to understand the basis for drawing that inference from the facts SS alleges.  To this must be added the fact that the examiner was advised by the legal submissions in support dated 13 January 2009 that it was reasonable for the examiner to issue the summons.  In the face of this evidence, considered with the fact the examiner issued the summons, the inference that the examiner was satisfied as required should be drawn. 

108                      Similarly, SS’s submission that the examiner could not have been so satisfied is unsupported.  By this submission I understand SS to be alleging that it was not reasonably open to the examiner to be so satisfied.  Yet SS pointed to no fact or circumstance which would support the conclusion that for the examiner to reach the required state of satisfaction involved “something overwhelming” and thereby was so unreasonable that no reasonable examiner could ever have come to it (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 230 and 234; see also Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 at [44]). 

109                      The same considerations undermine SS’s claim that the issue of the summons involved an abuse of process.

Grounds 5 and 6

110                      These grounds are related in that one of the deficiencies on the face of the summons alleged by SS concerns the notation under s 29A(2) of the ACC Act.

111                      Section 29A of the ACC Act includes provisions as follows:

(1)        The examiner issuing a summons under section 28 or a notice under section 29 must, or may, as provided in subsection (2), include in it a notation to the effect that disclosure of information about the summons or notice, or any official matter connected with it, is prohibited except in the circumstances, if any, specified in the notation.

(2)        A notation must not be included in the summons or notice except as follows:

(a)     the examiner must include the notation if satisfied that failure to do so would reasonably be expected to prejudice:

(i)      the safety or reputation of a person; or

(ii)      the fair trial of a person who has been or may be charged with an offence; or

(iii)     the effectiveness of an operation or investigation;

(b)     the examiner may include the notation if satisfied that failure to do so might prejudice:

(i)      the safety or reputation of a person; or

(ii)      the fair trial of a person who has been or may be charged with an offence; or

(iii)     the effectiveness of an operation or investigation;

(c)     the examiner may include the notation if satisfied that failure to do so might otherwise be contrary to the public interest.

(3)        If a notation is included in the summons or notice, it must be accompanied by a written statement setting out the rights and obligations conferred or imposed by section 29B on the person who was served with, or otherwise given, the summons or notice.

(4)        If, after the ACC has concluded the operation or investigation concerned:

(a)     no evidence of an offence has been obtained as described in subsection 12(1); or

(b)     evidence of an offence or offences has been assembled and given as required by subsection 12(1) and the CEO has been advised that no person will be prosecuted; or

(c)     evidence of an offence or offences committed by only one person has been assembled and given as required by subsection 12(1) and criminal proceedings have begun against that person; or

(d)     evidence of an offence or offences committed by 2 or more persons has been assembled and given as required by subsection 12(1) and:

(i)      criminal proceedings have begun against all those persons; or

(ii)      criminal proceedings have begun against one or more of those persons and the CEO has been advised that no other of those persons will be prosecuted;

all the notations that were included under this section in any summonses or notices relating to the operation or investigation are cancelled by this subsection.

(5)        If a notation is cancelled by subsection (4), the CEO must serve a written notice of that fact on each person who was served with, or otherwise given, the summons or notice containing the notation.

112                      Section 29B of the ACC Act includes the following provisions:

(1)        A person who is served with, or otherwise given, a summons or notice containing a notation made under section 29A must not disclose:

(a)     the existence of the summons or notice or any information about it; or

(b)     the existence of, or any information about, any official matter connected with the summons or notice.

Penalty:  20 penalty units or imprisonment for one year.

(2)        Subsection (1) does not prevent the person from making a disclosure:

(a)     in accordance with the circumstances, if any, specified in the notation; or

(b)     to a legal practitioner for the purpose of obtaining legal advice or representation relating to the summons, notice or matter; or

(c)     to a legal aid officer for the purpose of obtaining assistance under section 27 relating to the summons, notice or matter; or

(d)     if the person is a body corporate - to an officer or agent of the body corporate for the purpose of ensuring compliance with the summons or notice; or

(e)     if the person is a legal practitioner - for the purpose of obtaining the agreement of another person under subsection 30(3) to the legal practitioner answering a question or producing a document at an examination before an examiner.

(3)        If a disclosure is made to a person as permitted by subsection (2) or (4), the following provisions apply:

(a)     while he or she is a person of a kind to whom a disclosure is so permitted to be made, he or she must not disclose the existence of, or any information about, the summons or notice, or any official matter connected with it, except as permitted by subsection (4);

(b)     while he or she is no longer such a person, he or she must not, in any circumstances, make a record of, or disclose the existence of, the summons, notice or matter, or disclose any information about any of them.

Penalty:  20 penalty units or imprisonment for one year.

(4)        A person to whom information has been disclosed, as permitted by subsection (2) or this subsection, may disclose that information:

(a)     if the person is an officer or agent of a body corporate referred to in paragraph (2)(d):

(i)      to another officer or agent of the body corporate for the purpose of ensuring compliance with the summons or notice; or

(ii)      to a legal practitioner for the purpose of obtaining legal advice or representation relating to the summons, notice or matter; or

(iii)     to a legal aid officer for the purpose of obtaining assistance under section 27 relating to the summons, notice or matter; or

(b)     if the person is a legal practitioner - for the purpose of giving legal advice, making representations, or obtaining assistance under section 27, relating to the summons, notice or matter; or

(c)     if the person is a legal aid officer - for the purpose of obtaining legal advice or representation relating to the summons, notice or matter.

(5)        This section ceases to apply to a summons or notice after:

(a)     the notation contained in the summons or notice is cancelled by subsection 29A(4); or

(b)     5 years elapse after the issue of the summons or notice;

whichever is sooner.

113                      The statement of facts and circumstances in support of the issue of the summons dated 13 January 2009 (insofar as not blacked out by the ACC pursuant to its claim for public interest immunity) records as follows:

114                      Paragraph 6 of the examiner’s record of reasons states as follows:

6) I was satisfied that this was an appropriate Summons for the inclusion of a notation pursuant to subsection 29A(1) of the Australian Crime Commission Act 2002, in the terms approved by me, because if such a notation were not included it would reasonably be expected to prejudice the effectiveness of the operation and that a failure to do so might be contrary to the public interest.

115                      The summons contains a notation as follows:

And take notice that:

Pursuant to subsection 29A(1) of the Australian Crime Commission Act 2002, disclosure of information about this summons, or any official matter connected with it, is prohibited except to the Federal Court of Australia and the Attorneys-General of the Commonwealth and the States for the purposes of any application challenging the validity of the summons, in which case the applicant’s name is to be suppressed and replaced by a letter and/or number pseudonym, and where section 29B of the Act does not prevent such disclosure.

116                      Against this background SS submitted that the statement of facts and circumstances disclosed that the examiner had erred.  SS observed that, in common with the examiner’s reasons, the statement of facts and circumstances contains two references to the pseudonym “SS” even though the purported date of the document is 13 January 2009.  In accordance with my conclusions at [98] – [109] above about the examiner’s reasons, the subsequent amendment of the statement of facts and circumstances is probably a result of the order made under s 50 of the Federal Court of Australia Act (which the notation in the summons anticipated if the validity of the summons were challenged).  Nevertheless, such speculation is unnecessary because there is no basis in the legislation for concluding that a subsequent amendment of the statement of facts and circumstances to replace the name of the recipient with the pseudonym “SS” would have the effect of invalidating the summons. 

117                      SS submitted that there was an inconsistency between the statement of facts and circumstances (which said that a notation may, not must, be included in reliance on s 29A(2(B)) and the examiner’s reasons (which said that if such a notation were not included it “would” reasonably be expected to prejudice the effectiveness of the operation in apparent reliance on s 29A(2)(a)).  According to SS this demonstrated that the examiner failed to appreciate the obligations imposed by s 29A of the ACC Act.  The examiner, in his reasons, said he had regard to the statement of facts and circumstances and his conclusion that a summons should be issued was “based upon” that consideration.  Yet the former said a notation may but need not be included whereas the latter asserted, in effect, that the notation had to be included. 

118                      There is a short answer to these submissions.  Section 29A(1) imposes an obligation on the examiner.  It is the examiner who must turn his or her mind to the questions posed by s 29A(2).  The examiner may or may not accept the answer to those questions given in the statement of facts and circumstances (which is a document addressed to, rather than created by, the examiner).  In this case, the fact that the examiner may be inferred to have reached a different view from that of the author of the statement of facts and circumstances tends to confirm, rather than undermine, the conclusion that the examiner discharged his statutory function under s 29A.  Again, SS’s submissions did not explain in any meaningful way why an inconsistency between a document which has the apparent function of a report for the examiner and the examiner’s own record of reasons would affect the validity of the summons issued by the examiner.  The ACC Act does not require the creation of a statement of facts and circumstances.  It is presumably created to assist an examiner in the discharge of his or her functions.  An examiner is not bound by a statement of facts and circumstances.  Indeed, that would be contrary to the statutory scheme.  Accordingly, inconsistency between a statement of facts and circumstances and an examiner’s reasons, without more, does not establish any contravention of the ACC Act. 

119                      SS submitted that there was no evidence that the examiner had turned his mind to or approved the terms of the notation that appears in the summons.  In support of this submission SS observed that in AB Pty Ltd (at [53]) an examiner’s statement of reasons contained a statement that “I was satisfied that it was also appropriate that the notation pursuant to subsection 29A(1) of the Australian Crimes Commission Act 2002 be in the terms approved by me”.  However, there was no such statement, said SS, in the examiner’s reasons in the present case, which SS described as “significant”. 

120                      In fact, the examiner’s reasons in the present case include a reference to the examiner’s approval of the terms of the notation; the words are included in the third line of paragraph 6 (“in the terms approved by me”).  In any event, I do not consider the alleged difference (even if it existed) bears the weight that SS sought to place upon it.  The evidence in the present case should be assessed on its own terms.  Reliance on the differences between documents in the present case and other cases is a flimsy basis upon which to found inferences of the nature SS advocated.  The summons says it is issued by, and is signed by, the examiner.  In these circumstances the submission that there is no evidence that the examiner turned his mind to, or approved the terms of the notation that appears in the summons, is unsustainable.

121                      SS acknowledged that the summons notes the obligation in s 29A(3) of the ACC Act (namely, that if a notation is included in the summons or notice, it must be accompanied by a written statement setting out the rights and obligations conferred or imposed by s 29B on the person who was served with, or otherwise given, the summons or notice).  SS acknowledged further that the summons is accompanied by a written statement which sets out or accurately paraphrases the rights and obligations in ss 29B(1), (2), (5), (6) and 7(b) of the ACC Act.  SS said, however, that the statement is deficient because it does not set out or paraphrase s 29B(3) or refer at all to s 29B(4) of the ACC Act.  Accordingly, SS claimed that the summons contravened s 29A(3) because it did not deal with the rights and obligations of a person “otherwise given” the summons within the meaning of that section.

122                      The scheme of ss 29A and 29B of the ACC Act does not support SS’s approach to the meaning of “or otherwise given” in s 29A(3).  Section 29A(1) imposes an obligation on and vests power in an examiner to include a notation depending on the circumstances.  Section 29A(2) identifies the circumstances in which an examiner must and may include the notation.  Section 29A(3) requires the summons to be accompanied by a written statement setting out the rights and obligations “conferred or imposed by section 29B on the person who was served with, or otherwise given, the summons or notice”.  Section 29A(4) provides for an automatic cancellation of a notation after an operation or investigation has concluded in the circumstances specified.  Section 29A(5) requires the CEO to serve a written notice of the fact of cancellation on “each person who was served with, or otherwise given, the summons or notice containing the notation”.  Section 29B(1) imposes an obligation of non-disclosure on a person “who is served with, or otherwise given, a summons or notice” containing a notation under s 29A.  Section 29B(2) provides exceptions to the s 29B(1) obligation which a person subject to obligations under s 29B(1) may use.  Section 29B(3) imposes obligations of non-disclosure on persons to whom disclosure is made by a person subject to obligations under s 29B(1) using one or more of the exceptions in s 29B(2).  Section 29B(4) provides exceptions to the s 29B(3) obligation which a person subject to obligations under s 29B(3) may use. 

123                      Three matters are apparent from this scheme. 

124                      First, the scheme distinguishes between a person “served, or otherwise given” a summons or notice and a person to whom a person “served, or otherwise given” a summons or notice makes disclosure.  The former is subject to ss 29B(1) and (2).  The latter is subject to ss 29B(3) and/or (4).  Consideration of the opening words of the provisions of ss 29B(1) to (4) supports this distinction (that is, the fact that s 29B(1) uses the words “served, or otherwise given” whereas ss 29B(3) and (4) refer to persons to whom disclosure has been made or information disclosed).  This distinction indicates that the Act establishes two classes of persons for the purpose of these provisions, namely: - (i) persons who are served or otherwise given a summons or notice, and (ii) persons who are the recipient of disclosure by a person served or otherwise given a summons or notice, but who have not themselves been served or otherwise given a summons.  This scheme is inconsistent with SS’s case that the words “otherwise given” in s 29A(3) should be read as applying to a person who is the recipient of disclosure by a person served or otherwise given a summons or notice. 

125                      Second, treating a person to whom disclosure has been made about a summons or notice as a person “otherwise given” the summons or notice under s 29A(3) undermines the careful scheme of obligations imposed by s 29B.  The reason for this is that the words “or otherwise given” must take the same meaning wherever they appear in the ACC Act.  Hence, s 29B(1), on SS’s construction, would apply to a person to whom disclosure is made (and who happens to be given a copy of the summons or notice as part of that disclosure) under s 29B(2).  Yet such a person would also be subject to the obligations imposed by s 29B(3).  Similarly, if that person to whom disclosure is made under s 29B(2) (and who happens to be given a copy of the summons or notice as part of that disclosure) themselves makes a disclosure under s 29B(4) (and happens to be given a copy of the summons or notice as part of that disclosure) the person who is the recipient of the disclosure under s 29B(4) would also become a person subject to the obligations under s 29B(3), yet also (on SS’s case) s 29B(1) as well.  This makes the statutory scheme nonsensical. 

126                      Third, and as the ACC pointed out, if SS’s construction is correct then the CEO’s obligation in s 29A(5) is unworkable.  The CEO will know the persons served or otherwise given the summons by the ACC.  The CEO cannot know the persons to whom a disclosure has been made in accordance with ss 29B(2) or (4).  Such a disclosure is not a matter for the CEO.  It is a matter for the person served or otherwise given the summons or notice by the ACC and the recipient of the disclosure.  Yet SS’s construction would require the CEO to give written notice of the cancellation of the notation to persons both served or otherwise given the summons or notice by the ACC and persons (unknown to the CEO) to whom such a person made disclosure (and so on in accordance with s 29B(4)). 

127                      These considerations indicate that the ACC’s submission must be accepted.  The words “person who was served with, or otherwise given, the summons or notice”, wherever they appear in the ACC Act, mean a person served or otherwise given the summons or notice by the ACC.  It does not extend to persons to whom a copy of the summons or notice may be given as part of a disclosure by a person served or otherwise given a summons or notice by the ACC.  No other construction of the words is reasonably open.  It follows that I also reject this argument on behalf of SS.

128                      SS also claimed that the summons was defective on its face because it did not require SS to attend to give evidence as a witness to federally relevant criminal activity.  Rather, the summons refers only to being required to attend to “give evidence of federally relevant criminal activity”.  According to SS the summons thereby contravened the ACC Act which confines the power to summons a person to give evidence at an examination to witnesses (referring to ss 25A(6), (7), 26, 27, 28, 30, 31, and 33).  SS submitted that a summons which did not require a person to attend to give evidence in his or her capacity as a witness is thereby invalid. 

129                      This submission is without merit.  The summons is issued pursuant to s 28(1).  The section states that an examiner may summon a person to appear before an examiner at an examination “to give evidence and to produce such documents or other things (if any) as are referred to in the summons”.  The section makes no reference to the word “witness”.  It certainly does not require a summons, on its face, to use the word “witness”.  In any event, the terms of the section and summons are clear.  The person is to attend “to give evidence”.  Finally, SS (again) has not explained why any such contravention (if it had occurred, which it has not) would result in invalidity of the summons having regard to the principles established in Project Blue Sky at [91]-[93].

130                      SS’s amended statement of claim included a pleading to the effect that the summons was invalid because it failed to have attached to it a valid copy of the ATS determination as required by s 28(2) of the ACC Act.  It is common ground that a copy of the ATS determination accompanied the summons.  I understand this pleading to depend upon the allegation of invalidity of the ATS determination and ATS determination amendment 2008.  As I rejected those contentions above this ground does not require further comment. 

SOME OTHER OBSERVATIONS

131                      The ACC relied on s 16 of the ACC Act to defend the validity of the ATS determination.  Section 16 provides that:

If:

(a)     an intelligence operation is determined by the Board to be a special operation; or

(b)     an investigation into matters relating to federally relevant criminal activity is determined by the Board to be a special investigation;

then, except in a proceeding instituted by the Attorney-General of the Commonwealth or the Attorney-General of a State, any act or thing done by the ACC because of that determination must not be challenged, reviewed, quashed or called in question in any court on the ground that the determination was not lawfully made.

132                      As I do not consider any of SS’s challenges to the validity of the ATS determination or ATS determination amendment 2008 to be sustainable, it is not necessary for me to decide whether s 16 would operate as the ACC contended. 

133                      As should be apparent from the discussion above, some of SS’s arguments concerned the ACC’s claim of public interest immunity over large parts of the documents.  Further, SS referred to the fact that the ACC had not called any member of the Board or the examiner.  SS relied on both circumstances as assisting in the discharge of SS’s onus of proof.  As a general response to the first issue, it is sufficient to repeat the observations of Mason J in Church of Scientology Inc v Woodward (1982) 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.

134                      As a general response to the second issue, and as discussed above, SS bore the onus.  Recourse to the reasoning in Jones v Dunkel is inappropriate in circumstances where, as here, the many allegations of impropriety never rose above mere suspicion.  In this case, moreover, the available evidence speaks against the suspicions which SS sought to engender. 

135                      SS relied heavily on the extensive and coercive powers in the ACC Act to support the arguments made about invalidity.  There is, however, a difference between construing a statute containing extensive coercive powers strictly to ensure that Parliament’s will is enforced and not exceeded (as referred to by Flick J in AB Pty Ltd at [18]-[19] and supported by high authority) and attempting to establish invalidity of an administrative act other than by the orthodox process of fact finding and inference-drawing according to the available evidence.

136                      SS’s submissions also did not deal with the presumption of regularity on which the ACC relied at least insofar as the Board’s compliance with s 7C of the ACC Act is concerned.  I have not dealt with the presumption in the above discussion because my conclusions make it unnecessary to do so.  Nevertheless, it seems to me that the presumption would operate with respect to all “necessary conditions and formalities” of the making of the ATS determination and amendment (Industrial Equity Ltd v Deputy Commissioner of Taxation (1990) 170 CLR 649 at 671-672).  As the New South Wales Court of Appeal observed in Hill v Woollahra Municipal Council & Ors (2003) 127 LGERA 7; [2003] NSWCA 106 at [52]:

The presumption is a presumption of fact, associated with a reasonable inference based on what ordinarily happens in the ordinary course of human affairs: see McLean Brothers & Rigg Ltd v Grice (1906) 4 CLR 835 at 849-51 per Griffiths CJ. In deciding whether the presumption of regularity is rebutted, this inference from the ordinary course of human affairs carries some weight, which may vary according to the proved circumstances.

137                      The presumption has not been rebutted in this case. 

138                      SS’s submissions not only tended to contradict the available evidence but also failed to explain why any particular allegation, if found to be correct, would have the consequence of rendering the ATS determination or summons invalid.  The question posed by Project Blue Sky at [93] as to “whether it was a purpose of the legislation that an act done in breach of the provision should be invalid” and the need, in determining the answer, to have regard to “the language of the relevant provision and the scope and object of the whole statute” did not feature in SS’s submissions. 

139                      One other matter, relating to the ACC’s redaction of documents, must be considered.  When the hearing resumed on 24 April 2009 the ACC sought leave to re-open to tender a part of the minutes of the Board’s meeting on 5 December 2007 which had previously been excised.  After objection from SS and an indication from me as to the steps that would be required to explain the late production of this part of the minutes, the ACC withdrew its application. 

140                      SS made submissions during the hearing about these events as follows: - (i) it would be improper for the ACC to assert that what has been discovered as “(t)he minutes of the board meeting of 5 December 2007” was also “(t)he resolution of the board of 5 December 2007” as that phrase occurs in the ATS determination, (ii) the ACC’s case must proceed on the basis that there is no direct evidence as distinct from indirect evidence of any resolution of the Board meeting on 5 December 2007 and that what has been discovered and tendered as the minutes do not show any such resolution, (iii) it would be wrong to dismiss SS’s case on the basis that “the Board must have made a determination in writing by resolution when the resolution is not produced, although it exists”, and (iv) the ACC’s conduct, by withholding the resolution of 5 December 2007, merits “the severest condemnation” from the Court because there is some evidence from which it could be inferred that the ACC has acted in bad faith.

141                      After making oral submissions on 24 April 2009 neither party sought or obtained leave to file and serve any additional submissions and I thus reserved my decision.  Despite this, on 27 April 2009 a chain of email correspondence commenced by which SS sought to file and rely on a document entitled “Further Outline of Submissions in Reply on Behalf of the Applicant”.  The ACC objected to the further submissions.  My associate advised the parties that SS required leave which should be sought by way of notice of motion. 

142                      The reason that a notice of motion was required is that it is “quite misconceived” for a party to file supplementary written submissions after the conclusion of oral argument without leave having been given beforehand (Carr v Finance Corporation of Australia Ltd (No 1) (1980) 147 CLR 246 at 258).  Further, Gleeson CJ, McHugh, Gummow, Hayne and Heydon JJ in Re Application by the Chief Commissioner of Police (Vic  (2005) 214 ALR 422; [2005] HCA 18 at [54] said:

Where leave has not been given publicly for supplementary submissions and evidence, the provision of such material to court registries without permission of the court, publicly signified, is a derogation from the principle of the open administration of justice. It should not occur. If new points of importance arise in the case whilst a matter stands for judgment, the proper course (unless statute or court rules permit otherwise) is for the proceeding to be relisted so that an application to enlarge the record can be made and determined in open court.

143                      On 25 May 2009 SS filed a notice of motion seeking the required leave to rely on its further written submissions.  The ACC opposed the grant of leave and sought to rely on a further reply if leave were granted.  I granted leave and have considered all further submissions and the additional oral submissions made today.

144                      SS’s further submissions contended that the circumstances relating to the ACC’s late disclosure of the additional part of the minutes of the Board’s meeting on 5 December 2007 warranted the striking out of the ACC’s defence or at least that part of the defence concerning SS’s claim of a breach of s 7C of the ACC Act (relying on Brookfield v Yevad Products Pty Ltd [2004] FCA 1164, Londish v Gulf Pacific Pty Ltd (1993) 45 FCR 128, British American Tobacco Australia Services Ltd v Cowell (2002) 7 VR 524; [2002] VSCA 197, Fuji Xerox Australia Pty Ltd v Lee [2003] QSC 303, and Clark v State of New South Wales (2006) 66 NSWLR 640; [2006] NSWSC 673).  SS said that the ACC had still not discovered the precise resolution because it feared that the deponent of an affidavit of further discovery would be cross-examined.  The ACC, SS said, always intended to rely on secondary evidence of the resolution whilst withholding the actual resolution, thereby foisting an abuse of process on SS and the Court (citing Williams v Spautz (1992) 174 CLR 509).

145                      The ACC said SS’s submissions were misconceived.  The late production of the precise resolution was consistent with the ACC’s ongoing discovery obligations.  No order had been made for a supplementary affidavit and thus SS’s assumption of a right to cross-examine and consequential attribution of some improper motive to the ACC was illogical and unfounded.  Similarly, no evidence supported SS’s attribution of a sinister motive for the late production.  The only reason the Court does not have the precise resolution in evidence is SS’s objection.  There is a difference between a party objecting to a process of discovery and objecting to the Court being furnished with relevant evidence.  SS took the latter course and thus cannot complain of an abuse of process when the reason that the document is not before the Court is SS’s own objection.  It may also be inferred from SS’s objection that the resolution supported the ACC’s defence, thereby confirming that it is simply illogical for SS to attribute a sinister motive to the ACC.  Further, the ACC said that the other evidence before the Court is sufficient to sustain the ACC’s defence in any event.

146                      It is true that the consequence of these circumstances is that there is not in evidence any actual resolution of the Board of 5 December 2007.  Nevertheless, and as discussed above, there is ample evidence from which the existence of such a resolution may be inferred.  These circumstances do not affect the conclusions I have reached based on the usual process of drawing inferences from the available evidence.  As the ACC said, SS’s submissions to the contrary are misconceived.

147                      I do not accept that there is a proper basis in the circumstances of the present case for the making of any order striking out the whole or part of the ACC’s defence.  The decisions on which SS relied are distinguishable.  They involved cases of improper destruction or withholding of evidence.  SS’s suggestion of bad faith and impropriety on the part of the ACC in this case is unfounded.  There is no basis to infer that the ACC deliberately withheld a document it knew that it had an obligation to produce for any reason (let alone the reason advanced by SS of an ACC fear that the deponent of an affidavit of discovery might be cross-examined). 

148                      The basic facts are these: - (i) the ACC produced the minutes, (ii) the ACC excised parts of the minutes that it considered irrelevant or should not be admitted into evidence due to public interest immunity, (iii) after the adjournment of the hearing, the ACC apparently decided that a part of the minutes previously blacked out in fact should be disclosed as it was relevant and was not properly the subject of the claim for public interest immunity, (iv) when the hearing resumed the ACC disclosed that part of the minutes and sought leave to re-open to tender it, (v) SS objected to the late tender, and (vi) the ACC withdrew the application to re-open to tender the document.  Those facts do not support SS’s allegations of bad faith and impropriety against the ACC.

149                      On these facts, it also cannot be said that this is a case where the ACC’s failure to produce that part of the minutes at an earlier time, or withdrawal of its tender, has had the effect of defeating SS’s claims.  As the ACC made clear, it sought to tender the additional part of the minutes to answer one of SS’s claims but, on objection by SS, withdrew the tender on the basis that the existing evidence was sufficient to establish its defence.  These facts bear no resemblance to cases in which a party’s default with respect to discovery has prevented or defeated the making of a claim.

150                      Nor can SS’s submissions about abuse of process be sustained.  As the ACC observed, SS’s submissions depended on a distinction between discovery on oath and production of documents.  The fact is that the ACC produced the resolution.  Hence, SS’s description of not being “allowed” the document is simply untenable.  SS cannot complain of an abuse of process (or, at least, cannot succeed in sustaining such a complaint) when SS’s complaint is a result, in a large part, from the forensic decision SS made to object to the tender of the resolution.  As the ACC submitted, late production is one thing; objecting to relevant evidence being put before the Court is another.  In this case, only SS took the latter course, not the ACC.

151                      Accordingly, these circumstances also do not provide any basis for upholding any part of SS’s claims.

CONCLUSION AND ORDERS

152                      For the reasons given I do not accept any of SS’s challenges to the validity of the ATS determination, the ATS determination amendment 2008 or the summons.  It follows that the application should be dismissed with costs.  I reserve the question of costs relating to that part of the hearing on the morning of 24 April 2009 in connection with the ACC’s application for leave to re-open to tender a further part of the minutes of the ACC’s Board meeting of 5 December 2007 and the applicant’s notice of motion filed 25 May 2009.

Associate:

Dated:         29 May 2009