FEDERAL COURT OF AUSTRALIA
AA v Board of the Australian Crime Commission [2009] FCA 642
Acts Interpretation Act 1901 (Cth) s 20, s 25D
Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5, s 6
Australian Crime Commission Act 2002 (Cth) ss 4, 7B, 7C, 7E, 7J, 24A, 25D, 28, 29A, 29B, 30
Australian Crime Commission Amendment Act (No 168 of 2007) (Cth)
Australian Federal Police Act 1979 (Cth) ss 17, 19, 69C
Judiciary Act 1903 (Cth) s 39B
American Cyanamid Co v Ethicon Ltd [1975] AC 396 discussed
Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 discussed
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 referred to
Barnes v Boulton (2004) 139 FCR 356 discussed
Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 cited
CC v Australian Crime Commission [2005] FCA 754 cited
Castlemaine Tooheys Ltd v The State of South Australia (1986) 161 CLR 148 discussed
Fernando v Minister for Immigration & Multicultural Affairs [1999] FCA 1375 cited
Gazal Apparel Pty Ltd v Davies (2007) 247 LSJS 391 cited
Hicks v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 757 cited
Kelly v Wolstenholme [1991] 4 ACSR 709 referred to
Lim v Secretary, Department of Education, Employment and Workplace Relations (No 2) [2008] FCA 1752 cited
Minister for Immigration and Multicultural Affairs v Rajamanikkam (2002) 210 CLR 222 referred to
National Dwellings Society v Sykes [1894] 3 Ch 159 referred to
Registrar of Aboriginal Corporations v Barker (1997) 81 FCR 53 cited
Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 discussed
Smith Kline & French Laboratories (Aust) Ltd v Secretary, Department of Community Services and Health (1990) 22 FCR 73 cited
SS v Australian Crime Commission [2009] FCA 580 followed
The Federal Commissioner of Taxation v Broken Hill South Ltd (1941) 65 CLR 150 referred to
Undershaft (No 1) Ltd (Formerly CGNU Holdings (Australia) Ltd) v Commissioner of Taxation (2009) 253 ALR 280 cited
Watt v Australian Crime Commission [2004] FCA 1669 discussed
World Series Cricket Pty Ltd v Parish (1977) 16 ALR 181 cited
AA v BOARD OF THE AUSTRALIAN CRIME COMMISSION, AUSTRALIAN CRIME COMMISSION and JOHN PLANTA HANNAFORD
SAD 64 of 2009
BB v BOARD OF THE AUSTRALIAN CRIME COMMISSION, AUSTRALIAN CRIME COMMISSION and JOHN PLANTA HANNAFORD
SAD 65 of 2009
CC v BOARD OF THE AUSTRALIAN CRIME COMMISSION, AUSTRALIAN CRIME COMMISSION and JOHN PLANTA HANNAFORD
SAD 66 of 2009
DD v BOARD OF THE AUSTRALIAN CRIME COMMISSION, AUSTRALIAN CRIME COMMISSION and TIM SAGE
SAD 67 of 2009
BESANKO J
22 JUNE 2009
ADELAIDE
| IN THE FEDERAL COURT OF AUSTRALIA |
|
| SOUTH AUSTRALIA DISTRICT REGISTRY | SAD 64 of 2009 |
| AA Applicant
|
| AND: | BOARD OF THE AUSTRALIAN CRIME COMMISSION First Respondent
AUSTRALIAN CRIME COMMISSION Second Respondent
JOHN PLANTA HANNAFORD Third Respondent
|
| JUDGE: | |
| DATE OF ORDER: | 22 JUNE 2009 |
| WHERE MADE: | ADELAIDE |
THE COURT ORDERS THAT:
The application by the applicant for an interlocutory injunction restraining the third respondent from proceeding with the examination of the applicant be refused.
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 eSearch on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA |
|
| SOUTH AUSTRALIA DISTRICT REGISTRY | SAD 65 of 2009 |
| BETWEEN: | BB Applicant
|
| AND: | BOARD OF THE AUSTRALIAN CRIME COMMISSION First Respondent
AUSTRALIAN CRIME COMMISSION Second Respondent
JOHN PLANTA HANNAFORD Third Respondent
|
| JUDGE: | BESANKO J |
| DATE OF ORDER: | 22 JUNE 2009 |
| WHERE MADE: | ADELAIDE |
THE COURT ORDERS THAT:
The application by the applicant for an interlocutory injunction restraining the third respondent from proceeding with the examination of the applicant be refused.
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 eSearch on the Court’s website.
| IN THE FEDERAL COURT OF AUSTRALIA |
|
| SOUTH AUSTRALIA DISTRICT REGISTRY | SAD 66 of 2009 |
| BETWEEN: | CC Applicant
|
| AND: | BOARD OF THE AUSTRALIAN CRIME COMMISSION First Respondent
AUSTRALIAN CRIME COMMISSION Second Respondent
JOHN PLANTA HANNAFORD Third Respondent
|
| JUDGE: | BESANKO J |
| DATE OF ORDER: | 22 JUNE 2009 |
| WHERE MADE: | ADELAIDE |
THE COURT ORDERS THAT:
The application by the applicant for an interlocutory injunction restraining the third respondent from proceeding with the examination of the applicant be refused.
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 eSearch on the Court’s website.
| IN THE FEDERAL COURT OF AUSTRALIA |
|
| SOUTH AUSTRALIA DISTRICT REGISTRY | SAD 67 of 2009 |
| BETWEEN: | DD Applicant
|
| AND: | BOARD OF THE AUSTRALIAN CRIME COMMISSION First Respondent
AUSTRALIAN CRIME COMMISSION Second Respondent
TIM SAGE Third Respondent
|
| JUDGE: | BESANKO J |
| DATE OF ORDER: | 22 JUNE 2009 |
| WHERE MADE: | ADELAIDE |
THE COURT ORDERS THAT:
The application by the applicant for an interlocutory injunction restraining the third respondent from proceeding with the examination of the applicant be refused.
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 eSearch on the Court’s website.
| IN THE FEDERAL COURT OF AUSTRALIA |
|
| SOUTH AUSTRALIA DISTRICT REGISTRY | SAD 64 of 2009
|
| BETWEEN: | AA Applicant
|
| AND: | BOARD OF THE AUSTRALIAN CRIME COMMISSION Respondent
AUSTRALIAN CRIME COMMISSION Second Respondent
JOHN PLANTA HANNAFORD Third Respondent
|
|
| SAD 65 of 2009 |
| BETWEEN: | BB Applicant
|
| AND: | BOARD OF THE AUSTRALIAN CRIME COMMISSION First Respondent
AUSTRALIAN CRIME COMMISSION Second Respondent
JOHN PLANTA HANNAFORD Third Respondent
|
|
| SAD 66 of 2009 |
| BETWEEN: | CC Applicant
|
| AND: | BOARD OF THE AUSTRALIAN CRIME COMMISSION First Respondent
AUSTRALIAN CRIME COMMISSION Second Respondent
JOHN PLANTA HANNAFORD Third Respondent
|
|
| SAD 67 of 2009 |
| BETWEEN: | DD Applicant
|
| AND: | BOARD OF THE AUSTRALIAN CRIME COMMISSION First Respondent
AUSTRALIAN CRIME COMMISSION Second Respondent
TIM SAGE Third Respondent
|
| JUDGE: | BESANKO J |
| DATE: | 22 JUNE 2009 |
| PLACE: | ADELAIDE |
REASONS FOR RULING
Introduction
1 On 11 May 2009, BB instituted a proceeding in this Court against the Board of the Australian Crime Commission (“the Board”), the Australian Crime Commission (“the Commission”) and Mr John Planta Hannaford (“the examiner”). BB is a pseudonym. In the proceeding, BB seeks review of the following decisions and conduct of the respondents:
“1. The decision (‘the first decision’) of the First Respondent to make the instrument entitled ‘Australian Crime Commission Special Investigation Authorisation and Determination (High Risk Crime Groups No 2) 2009’ (‘the instrument’).
2. The decision (‘the second decision’) of the Second Respondent to seek the making of the instrument by the First Respondent.
3. The decision (‘the third decision’) of the Second Respondent to seek from the Third Respondent the issuing of the summons referred to in paragraph 4 hereof.
4. The decision (‘the fourth decision’) of the Third Respondent to issue the summons on 4 May 2009 at 10.28 hours (‘the summons’) to the Applicant pursuant to Section 28 of the Australian Crime Commission Act 2002 (Cth) (‘the Act’).
5. The conduct (‘the conduct’) of the Third Respondent in issuing the summons.”
2 The application by BB is made under s 5 and s 6 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”) and under s 39B of the Judiciary Act 1903 (Cth). Seven grounds are identified in the application. It is not necessary to set them out.
3 BB seeks the following relief, relevantly:
“1. A declaration that the Australian Crime Commission Special Investigation Authorisation and Determination (High Risk Crime Groups No 2) 2009 is invalid.
2. That the summons issued to the Applicant is invalid.
3. An order setting aside the summons requiring the applicant to attend before an examiner of the Australian Crime Commission.”
4 On 1 June 2009, BB issued a notice of motion seeking an injunction preventing any proposed examination of BB by the second and third respondents pursuant to the summons until the final disposition of the proceeding.
5 A similar proceeding was issued by each of AA, CC and DD. The only difference between the proceedings is that the examiner is a different person in the case of the proceeding by DD. The examiner is a Mr Tim Sage. Each of AA, CC and DD seek an injunction in similar terms to the injunction sought by BB.
6 The matters which are before me are the respective applications for injunctions. The argument proceeded on BB’s notice of motion on the basis that the result on that notice of motion would also be the result on the respective applications by AA, CC and DD. I will refer to BB as the applicant.
7 On the hearing of the applicant’s notice of motion, he put forward a document setting out five grounds of review which the applicant relied on for the purposes of the notice of motion. Those grounds relate to the third and fourth decisions. It is convenient to refer to those “decisions” as the decisions to issue the summons. Towards the end of the submissions on the applicant’s notice of motion, he raised another ground of review which challenged the validity of the summons by claiming that the Determination, being a determination of the Board entitled “Australian Crime Commission Special Investigation Authorisation and Determination (High Risk Crime Groups No 2) 2009”, was invalid. I will refer to this Authorisation and Determination as the 2009 Authorisation and Determination. I will deal with that ground of review after I have dealt with the five original grounds of review.
The test on an interlocutory injunction
8 In Castlemaine Tooheys Ltd v The State of South Australia (1986) 161 CLR 148, Mason ACJ said (at 153):
“The principles governing the grant or refusal of interlocutory injunctions in private law litigation have been applied in public law cases, including constitutional cases, notwithstanding that different factors arise for consideration. In order to secure such an injunction the plaintiff must show (1) that there is a serious question to be tried or that the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief; (2) that he will suffer irreparable injury for which damages will not be an adequate compensation unless an injunction is granted; and (3) that the balance of convenience favours the granting of an injunction.”
9 In Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57, Gleeson CJ and Crennan J said (at 68 [19]):
“…in all applications for an interlocutory injunction, a court will ask whether the plaintiff has shown that there is a serious question to be tried as to the plaintiff’s entitlement to relief, has shown that the plaintiff is likely to suffer injury for which damages will not be an adequate remedy, and has shown that the balance of convenience favours the granting of an injunction. These are the organising principles, to be applied having regard to the nature and circumstances of the case, under which issues of justice and convenience are addressed. We agree with the explanation of these organising principles in the reasons of Gummow and Hayne JJ, and their reiteration that the doctrine of the Court established in Beecham Group Ltd v Bristol Laboratories Pty Ltd should be followed.”
(Citations omitted.)
10 Gummow and Hayne JJ said (at 81 [65]) that the relevant principles in Australia are those explained in Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618. They referred to a passage in the reasons for judgment of Kitto, Taylor, Menzies and Owen JJ in that case and to their Honours’ use of the phrase “prima facie case”. Gummow and Hayne JJ went on to say (at 82 [65]):
“By using the phrase ‘prima facie case’, their Honours did not mean that the plaintiff must show that it is more probable than not that at the trial the plaintiff will succeed; it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. That this was the sense in which the Court was referring to the notion of a prima facie case is apparent from an observation to that effect by Kitto J in the course of argument. With reference to the first inquiry, the Court continued, in a statement of central importance for this appeal:
‘How strong the probability needs to be depends, no doubt, upon the nature of the rights [the plaintiff] asserts and the practical consequences likely to flow from the order he seeks.’”
(Citations omitted.)
A little later, after referring to observations by Lord Diplock in American Cyanamid Co v Ethicon Ltd [1975] AC 396, their Honours said (at 84 [71]):
“Those statements do not accord with the doctrine in this Court as established by Beecham and should not be followed. They obscure the governing consideration that the requisite strength of the probability of ultimate success depends upon the nature of the rights asserted and the practical consequences likely to flow from the interlocutory order sought.”
11 In this case, I have concluded that none of the five grounds of review advanced by the applicant have a sufficient likelihood of success to justify an interlocutory injunction restraining the examiner from proceeding with the proposed examination.
12 I have been able to reach that conclusion largely by a process of construing the relevant provisions of the Australian Crime Commission Act 2002 (Cth) (“the ACC Act”). In addition, there are two other matters which have assisted me in reaching the conclusions which I have, and they are matters which will not often be found on an application of this nature. The first is that, as to three of the six grounds of review, very similar points were raised in a case which I heard in March of this year (GG v Australian Crime Commission and Another SAD 176 of 2008). I had the benefit of full submissions on those points in that matter and judgment in the case will be delivered shortly. The second is that, as to two of the six grounds of review, a judge of this Court has considered the substance of those grounds of review and delivered a judgment: SS v Australian Crime Commission [2009] FCA 580 (“SS”).
The five original grounds of review
13 I turn now to consider the first five grounds of review advanced by the applicant.
Ground 1
“The decision to issue the Summons is invalid, and the Summons issued pursuant to that decision is of no effect, in that having regard to such reasons as the Third Respondent did record in writing, he could not reasonably have been satisfied (as he was required to be by s 28 (1A) of the Act) that it was reasonable to issue the summons.”
14 Section 28 of the ACC Act is in the following terms, relevantly:
“28 Power to summon witnesses and take evidence
(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.
…
(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.”
15 The respondents did not suggest that the decision by the examiner to issue the summons was not a decision capable of review in the exercise of the jurisdiction given to this Court by s 39B of the Judiciary Act 1903 (Cth), or on one of the grounds set out in s 5 or s 6 of the ADJR Act.
16 As I understood the applicant’s submission, it was that there was simply insufficient material before the examiner for him to be satisfied that it was reasonable in all the circumstances for him to issue the summons. The applicant referred to the speech of Lord Wilberforce in Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014. In that case, the Secretary of State was given the power by Act of Parliament to give a direction to the primary repository of a power concerning the exercise of the power where he was satisfied that the primary repository of the power had, or was proposing to act, unreasonably. Lord Wilberforce said (at 1047):
“(2) The section is framed in a ‘subjective’ form—if the Secretary of State ‘is satisfied.’ This form of section is quite well known, and at first sight might seem to exclude judicial review. Sections in this form may, no doubt, exclude judicial review on what is or has become a matter of pure judgment. But I do not think that they go further than that. If a judgment requires, before it can be made, the existence of some facts, then, although the evaluation of those facts is for the Secretary of State alone, the court must inquire whether those facts exist, and have been taken into account, whether the judgment has been made upon a proper self-direction as to those facts, whether the judgment has not been made upon other facts which ought not to have been taken into account. If these requirements are not met, then the exercise of judgment, however bona fide it may be, becomes capable of challenge: see Secretary of State for Employment v. ASLEF (No. 2) [1972] 2 Q.B. 455, per Lord Denning M.R., at p. 493.”
17 The applicant then referred to decisions which have considered whether various grounds in s 5 of the ADJR Act embody a “no evidence” or “no probative material” test. In the context of the ground in s 5(1)(a) (a breach of the rules of natural justice occurred in connection with the making of the decision), he referred to Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 (“Bond”) at 367 per Deane J and Minister for Immigration and Multicultural Affairs v Rajamanikkam (2002) 210 CLR 222 (“Rajamanikkam”) at 232-233 [25]-[29] per Gleeson CJ. In the context of the ground in s 5(1)(f) (the decision involved an error of law), the applicant referred to Bond at 355-358 per Mason CJ; The Federal Commissioner of Taxation v Broken Hill South Ltd (1941) 65 CLR 150 at 155 per Starke J, at 157 per McTiernan J, at 160-161 per Williams J; Rajamanikkam at 238-240 [49]-[53] per Gaudron and McHugh JJ. In the context of the ground in s 5(1)(h) (there was no evidence or other material to justify the making of the decision; see also s 5(3)), the applicant referred to Bond at 358 per Mason CJ, at 365 per Brennan J, at 369 per Deane J; Rajamanikkam at 233-234 [30]-[34] per Gleeson CJ, at 238-240 [49]-[53] per Gaudron and McHugh JJ, at 250-261 [96]-[125] per Kirby J.
18 For the purposes of this application, I will proceed on the basis that the applicant is entitled to challenge the examiner’s decision if he can show that there was no evidence to support the examiner’s conclusion that it was reasonable in all the circumstances to issue the summons or there was an absence of material from which the examiner could reasonably be satisfied that it was reasonable in all the circumstances to issue the summons.
19 The examiner’s reasons for issuing a summons requiring the applicant’s attendance were put before me. They consist of a two-page Reasons document signed by the examiner and dated 4 May 2009, a Statement of Facts and Circumstances document consisting of 12 pages and dated 1 May 2009, and a Legal Submissions document consisting of three pages and dated 1 May 2009. In the Reasons document, the following appears:
“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 1 May 2009
(b) Legal submissions dated 1 May 2009”
20 There is one item redacted in the Reasons document, most of the Statement of Facts and Circumstances document is redacted and some parts of the Legal Submissions document are redacted. The redactions were made by the respondents and they claimed that the redacted parts of the various documents were protected by public interest immunity. Save in one respect not presently material, that claim for public interest immunity is not challenged by the applicant.
21 I see no reason to conclude that the examiner did not satisfy himself that it was reasonable in all the circumstances to issue a summons to the applicant. His reasons contain a statement to that effect. It is true that the examiner’s reasons in all four proceedings before me adopt a similar form, in terms of the statements made by the examiner as to the matters of which he is satisfied. For reasons I do not need to set out, I received on the hearing of the applications reasons recorded by examiners in other matters where a summons was issued under s 28(1) of the ACC Act. Those reasons are also of a similar form to the reasons in the four proceedings before me, in terms of the statements made by the examiner as to the matters of which he is satisfied. The fact that a similar form (in the sense described) is used does not persuade me that the examiner did not have the relevant state of satisfaction or did not have regard to the material he identified in his reasons.
22 I see no reason to conclude that there was no evidence to support the examiner’s conclusion that it was reasonable in all the circumstances to issue the summons or there was an absence of material from which the examiner could reasonably be satisfied that it was reasonable in all the circumstances to issue the summons. He plainly had a good deal of material before him and, although I do not have the details of the material because of the claim for public interest immunity, it is for the applicant to make out a serious question to be tried in support of the ground of review asserted by him.
23 Counsel for the applicant identified some particular matters in the case of the proceeding brought by DD. He submitted that in his reasons the examiner made a finding of fact about DD’s membership of a group and his involvement or knowledge in certain activities. He submitted that there was no evidence identified in the reasons upon which the finding was based. However, there is nothing to suggest that there was no evidence in the Statement of Facts and Circumstances to support the finding. Counsel submitted that the examiner referred in his reasons to his general experience, but there is no indication in the reasons of the nature of that experience. That does not, to my mind, suggest a deficiency in the examiner’s process of reasoning. Counsel submitted that in the examiner’s reasons he, at one point, refers to a special operation whereas it is clear that the examination relates to a special investigation. In my opinion, reading the documents as a whole, this is no more than a slip and is not evidence that the examiner misunderstood the factual context in which he decided to issue the summons.
24 I see no reason why the same conclusions should not be reached in the case of DD as I have reached in the respective cases of AA, BB and CC.
25 I do not think the first ground has sufficient prospects of success to justify an interlocutory injunction restraining the examiner from conducting the proposed examination of the applicant.
Ground 2
“The decision to issue the Summons is invalid, and the Summons issued pursuant to that decision is of no effect, in that the Third Respondent failed to record in writing reasons for the issue of the Summons which complied with the requirements of s 28 (1A) of the Act. The Third Respondent failed to include in those reasons, as he was required to do by virtue of s 25D of the Acts Interpretation Act 1901 (Cth), the findings on material questions of fact and the evidence or other material on which those findings were based.”
26 There is no evidence before me about the examiner’s reasons other than what is set out in the Reasons document, the Statement of Facts and Circumstances document and the Legal Submissions document. There is no reason to think that the examiner had any reasons which are not recorded in those three documents. Therefore, leaving to one side for the present the possible operation of s 25D of the Acts Interpretation Act 1901 (Cth) (“the Acts Interpretation Act”), the examiner has recorded his reasons in writing. I did not understand the applicant to suggest that the Statement of Facts and Circumstances document and the Legal Submissions document could not be incorporated into the Reasons document by the reference made to them, but, in any event, I would reject any such argument. I see no reason why other records in writing cannot be incorporated into the Reasons document.
27 The applicant’s proposition is this: by reason of s 25D of the Acts Interpretation Act, the examiner’s reasons for the purposes of the obligation in s 28(1A) must include his findings on material questions of fact and a reference to the evidence or other material upon which those findings are based. It is said by the applicant that the examiner has not set out in his reasons his findings on material questions of fact or a reference to the evidence or other material upon which those findings are based.
28 Section 25D of the Acts Interpretation Act is in the following terms:
“25D Content of statements of reasons for decisions
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.”
29 For s 25D of the Acts Interpretation Act to be engaged, it must be established that s 28(1A) of the ACC Act imposes an obligation on an examiner to give written reasons for his or her decision to issue a summons. In my opinion, the applicant cannot establish that matter. Section 28 does not impose an obligation on an examiner to give reasons to an examinee or to give the written record of his reasons to an examinee: Barnes v Boulton (2004) 139 FCR 356. That decision was not challenged by the applicant. In the course of his decision in that case, Finn J said (at 363-364 [28]-[29]):
“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) 78 ALJR 585 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.
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: s 57; but the ADJR [sic] 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 ACC 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
(2004) 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.”
30 In my opinion, an obligation to record in writing the reasons for a decision or act (which is the obligation imposed by s 28(1A) of the ACC Act) is quite different from an obligation to give written reasons for a decision (which is the obligation postulated by s 25D of the Acts Interpretation Act). The latter, no doubt, includes giving written reasons to the person affected by the decision and publishing written reasons. The obligation in s 28(1A) to record in writing the reasons for the issue of a summons does not engage the obligation in s 25D of the Acts Interpretation Act to set out in an instrument giving the reasons the findings on material questions of fact and to refer to the evidence or other material on which those findings are based.
31 The applicant’s argument must fail for another reason, even if (contrary to my conclusion) s 28(1A) of the ACC Act engaged the obligation in s 25D of the Acts Interpretation Act. If I assume s 25D was engaged and I assume the examiner’s reasons did not satisfy the requirements of s 25D, the applicant’s argument must nevertheless fail because s 28(8)(a) of the ACC Act provides that a failure to comply with s 28(1A), “in so far as that subsection relates to the making of a record” does not affect the validity of a summons. The applicant submits that s 28(8)(a) only relates to the time when the record is made. In other words, the applicant submits that s 28(8)(a) is only engaged where the record is not prepared at one of the times specified in s 28(1A)(a), (b) and (c). It is not engaged, so the argument proceeds, where the failure relates to the contents of the record. I see no justification for drawing such a distinction. The words describing the failure as one relating to the “making of [the] record” are wide enough to cover obligations both as to the time at which the record is made and as to its contents.
32 The applicant referred to the fact that the provisions specifying times in s 28(1A), that is to say (a), (b) and (c), were part of the same amendment, that is, the Australian Crime Commission Amendment Act (No 168 of 2007) (Cth), which introduced s 28(8). The applicant submits that I should infer from that fact that s 28(8)(a) relates only to the time at which the reasons are to be recorded in writing. I was referred to the Explanatory Memorandum for the Australian Crime Commission Amendment Bill 2007. I reject this contention. For the reasons I have given, there is no reason to read down the words in s 28(8)(a) and in fact the Explanatory Memorandum supports the construction which I think is the proper one. The explanation for the introduction of s 28(8) of the ACC Act is as follows:
“Item 5
Subsections 28(1A) and 28(2) and section 29A prescribe a range of technical requirements for issuing a summons under subsection 28(1).
Subsection 28(1A) requires an examiner to record in writing the reasons for the issue of the notice.
Subsection 28(2) provides that a summons issued under subsection 28(1) must be accompanied by a copy of the determination by the ACC 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.
Section 29A sets out the circumstances in which an examiner who issues a summons under section 28 is required to include in the summons a notation to the effect that the disclosure of information about the summons, or any official matters connected with it, is prohibited (except in circumstances specified in the notice). The section sets out when a notation must or may be made, prescribes the form and content of the notation, and provides for cancellation of the notation.
This item adds a new subsection 28(8) to the ACC Act to provide that a failure to comply with the requirements set out in subsections 28(1A) – to the extent that the subsection relates to the making of a record – and 28(2) and section 29A of the ACC Act does not render a summons issued under subsection 28(1) invalid.
The purpose of this amendment is to ensure that ACC operations/investigations are not undermined by reason of an examiner’s failure to comply with these technical requirements.
This provision does not apply to substantive procedural obligations, such as the requirements under subsection 28(1A) that the examiner must be satisfied that it is reasonable in all the circumstances to issue the summons and under subsection 28(3) that the summons should, other than in limited circumstances, set out the general nature of the matters in relation to which the examiner intends to question the person.”
33 I do not think the second ground has sufficient prospects of success to justify an interlocutory injunction restraining the examiner from conducting the proposed examination of the applicant.
34 The issues raised in the second ground were the same as issues considered by Jagot J in SS. I have decided the issues in the same way as her Honour (see [88]-[92]).
35 There was debate before me as to the operation of the comity principle in circumstances where a single judge of this Court is called upon to decide an issue previously decided by another single judge of the Court. A judge of this Court should follow the decision of another single judge, unless satisfied that the decision is clearly wrong: Fernando v Minister for Immigration & Multicultural Affairs [1999] FCA 1375 at [1] per Finn J; Hicks v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 757 at [75]-[76] per French J. The comity principle in the circumstances I have described was discussed in detail by Lindgren J in Undershaft (No 1) Ltd (Formerly CGNU Holdings (Australia) Ltd) v Commissioner of Taxation (2009) 253 ALR 280, and I refer in particular to his Honour’s discussion at 294-295 [68]-[74].
36 I do not need to discuss the comity principle because I have reached the conclusions I have expressed independently of the decision of Jagot J in SS.
Ground 3
“The decision to issue the Summons is invalid, and the Summons issued pursuant to that decision is of no effect, in that the Statement annexed to the Summons (Annexure B) does not conform to, or comply with, s 29A (3) of the Australian Crime Commission Act 2000 [sic] (Cth) (the Act), as it must.”
37 Sections 29A and 29B of the ACC Act are in the following terms:
“29A Disclosure of summons or notice etc. may be prohibited
(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.
(7) If:
(a) under this section, a notation in relation to the disclosure of information about:
(i) a summons issued under section 28; or
(ii) a notice issued under section 29; or
(iii) any official matter connected with the summons or notice;
has been made and not cancelled; and
(b) apart from this subsection, a credit reporting agency (within the meaning of section 11A of the Privacy Act 1988) would be required, under subsection 18K(5) of the Privacy Act 1988, to make a note about the disclosure of the information;
such a note must not be made until the notation is cancelled.
(8) In this section:
official matter has the same meaning as in section 29B.
29B Offences of disclosure
(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.
(6) A reference in this section to disclosing something’s existence includes disclosing information from which a person could reasonably be expected to infer its existence.
(7) In this section:
legal aid officer means:
(a) a member, or member of staff, of an authority established by or under a law of a State or Territory for purposes including the provision of legal assistance; or
(b) a person to whom the Attorney‑General has delegated his or her powers and functions under section 27.
official matter means any of the following (whether past, present or contingent):
(a) the determination referred to in subsection 28(2);
(b) an ACC operation/investigation;
(c) an examination held by an examiner;
(d) court proceedings.”
38 In the case of the applicant, the summons contained the following note:
“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.”
39 This note was made pursuant to the power of, or obligation on, the examiner under s 29A(1) and (2). Where, as in this case, there is a notation, there is an obligation under s 29A(3) to ensure that the summons is 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”.
40 In the case of the applicant, the summons also contained the following note:
“Pursuant to subsection 29A(3) of the Australian Crime Commission Act 2002 a statement setting out the rights and obligations conferred or imposed on you [and on any person to whom this summons is given] by section 29B of the Act is annexed as Annexure B.”
41 Two documents accompanied the summons issued to the applicant; one was the 2009 Authorisation and Determination and the other was a document entitled “Statement of Rights and Obligations under Section 29B of the Australian Crime Commission Act 2002” (“the Statement”).
42 The applicant submits that the Statement did not set out the rights and obligations under s 29B on the, or a, person who was “otherwise given, the summons”.
43 It is convenient to start by describing what is set out in the Statement and then to examine the requirements of s 29A and s 29B.
44 The Statement refers to the effect of a notation in the terms set out in s 29A(1) and (2), to the circumstances in which disclosure may be made in the terms set out in s 29B(2), to circumstances in which the restrictions on disclosure may come to an end in the terms set out in s 29B(5) and to the fact that s 29B(3) sets out the rights and obligations of a person to whom disclosure is made under s 29B(2). The Statement does not set out the obligations in s 29B(3) or the rights in s 29B(4).
45 The applicant submits that a person otherwise given the summons within the terms of s 29A(3) includes a person given the summons, not only by the Commission or an examiner, but by a person served with the summons, or by a person who has been given the summons by a person who in turn has received the summons from the person served with the summons. The applicant submits that if this proposition is correct then it follows that the Statement should set out the obligations and rights in s 29B(3) and (4) either because the words “otherwise given, a summons” in s 29B(1) have a different meaning from the same words used in s 29A(3), or because a person “otherwise given, a summons” can fall within the terms of both s 29B(1) on the one hand and s 29B(2) and (4) on the other.
46 The respondents submit that the Act creates two classes, namely, a class of persons served with a summons or otherwise given a summons by the Commission or an examiner, and a class of persons to whom disclosure is made by a person in the first class or by a person otherwise in the second class. The obligations and rights of the first class are set out in s 29B(1) and (2) and the obligations and rights of the second class are set out in s 29B(3) and (4). On this analysis, the written statement referred to in s 29A(3) must set out the obligations and rights set out in s 29B(1) and (2), but need not set out the obligations and rights in s 29B(3) and (4).
47 In my opinion, the construction of s 29A and s 29B of the ACC Act advanced by the respondents is the correct one. First, the respondents’ construction means the words “otherwise given, the summons” are given the same meaning in the two sections. Secondly, the construction is consistent with the distinction suggested by the structure of s 29B between a person directly involved with the Commission or an examiner in that he or she has been served with a summons or otherwise given a summons by the Commission or an examiner, on the one hand, and a person to whom disclosure has been made, on the other. Thirdly, the respondents’ construction avoids the practical difficulties that the applicant’s construction creates in terms of the obligation placed on the Chief Executive Officer of the Commission by s 29A(5).
48 This issue was also an issue considered by Jagot J in SS. Again, I have reached my conclusions independently of her Honour’s decision. However, with respect, her Honour’s reasons neatly summarise why in this case the applicant’s submission must be rejected and I take the liberty of repeating them. Her Honour said (at [123]-[127]):
“Three matters are apparent from this scheme.
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.
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.
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)).
These considerations indicate that the ACC’s submission must be accepted.”
49 In my opinion, the third ground does not have sufficient prospects of success to justify an interlocutory injunction restraining the examiner from conducting the proposed examination of the applicant.
Ground 4
“The decisions are invalid in that the information they were based on was unlawfully obtained, and not permitted by the Act to be relied on for the purpose of issuing a Summons pursuant to s 28 of the Act. The information relied on was obtained in the conduct of a special investigation purportedly authorized by an instrument of the First Respondent (Board) made on 25 July 2005 (the 2005 Determination), and authorizing that investigation until 30 June 2006. That date was successively extended on 7 June 2006, 14 June 2007, and 25 June 2008 by instruments of extension which were invalid for failure to comply with s 7E of the Act.”
50 The Board made an Authorisation and Determination entitled “Australian Crime Commission Special Investigation Authorisation and Determination (High Risk Crime Groups) 2005” on 27 July 2005. I will refer to this as the 2005 Authorisation and Determination. The 2005 Authorisation and Determination is signed by Mr M J Keelty, who was the Commissioner of the Australian Federal Police and Chair of the Board, and it authorised an investigation by the Commission until 30 June 2006.
51 On 7 June 2006, the Board extended the 2005 Authorisation and Determination until 30 June 2007. Mr Keelty signed the “Australian Crime Commission Special Investigation Authorisation and Determination (High Risk Crime Groups) Amendment No 1 of 2006” as Chair of the Board. No challenge is made to this extension.
52 On 24 May 2007, Mr Keelty signed a letter which was in the following terms:
“24th May 2007
Federal Agent John Lawler
PERFORMING THE FUNCTIONS OF COMMISSIONER
I require you to perform the functions of Commissioner from 8.00 am on Saturday 2 June 2007 until 9.00 pm Thursday 14 June 2007. During this period I will be travelling overseas.
Under Part IV, Section 19(1) of the Australian Federal Police Act you are to exercise all the powers and perform all the functions and duties of the Commissioner, including disciplinary matters.
[signed]
M J Keelty”
53 On 14 June 2007, the Board extended the 2005 Authorisation and Determination until 30 June 2008. It seems that Mr Lawler signed the “Australian Crime Commission Special Investigation Authorisation and Determination (High Risk Crime Groups) Amendment No 1 of 2007” as Chair of the Board. The applicant claims that this extension was invalid because the meeting of the Board at which this extension was made was presided over by a person who was not authorised to preside over a meeting of the Board.
54 It is convenient at this point to set out the provisions of the ACC Act which are relevant to this issue. They are as follows:
(1) The Board of the ACC is established by this section.
Board members
(2) The Board consists of the following members:
(a) the Commissioner of the Australian Federal Police;
(b) the Secretary of the Department;
(c) the Chief Executive Officer of the Australian Customs Service;
(d) the Chairperson of the Australian Securities and Investments Commission;
(e) the Director‑General of Security holding office under the Australian Security Intelligence Organisation Act 1979;
(f) the Commissioner or head (however described) of the police force of each State and of the Northern Territory;
(g) the Chief Police Officer of the Australian Capital Territory;
(h) the CEO.
Chair
(3) The Commissioner of the Australian Federal Police is the Chair of the Board.
…
7E Presiding at Board meetings
A meeting of the Board must be presided over by:
(a) if the Chair of the Board is present—the Chair; or
(b) otherwise—another eligible Commonwealth Board member who is present and who is nominated, in writing, by the Chair to preside.
There is a definition of eligible Commonwealth Board member in s 4 and it provides as follows:
eligible Commonwealth Board member means the following members of the Board:
(a) the Commissioner of the Australian Federal Police;
(b) the Secretary of the Department;
(c) the Chief Executive Officer of the Australian Customs Service;
(d) the Chairperson of the Australian Securities and Investments Commission;
(e) the Director‑General of Security holding office under the Australian Security Intelligence Organisation Act 1979.
55 On 3 June 2008, Mr Keelty signed a letter which was in the following terms:
“3rd June 2008
Tony Negus
Deputy Commissioner Operations
AFP Headquarters
GPO Box 401
CANBERRA ACT 2601
PERFORMING THE FUNCTIONS OF COMMISSIONER
I require you to perform the functions of Commissioner from 3.00 pm on Saturday 14 June until 9.00 am Friday 27 June 2008. During this period I will [sic] on official overseas related travel.
Under Part IV, Section 19(1) of the Australian Federal Police Act you are to exercise all the powers and perform all the functions and duties of the Commissioner, including disciplinary matters.
[signed]
M J Keelty”
56 On 25 June 2008, the Board extended the 2005 Authorisation and Determination until 30 June 2009. It seems that Mr Negus signed the “Australian Crime Commission Special Investigation Authorisation and Determination (High Risk Crime Groups) Amendment No 1 of 2008” as Chair of the Board. Again, the applicant claims that this extension was invalid because the meeting of the Board at which this extension was made was presided over by a person who was not authorised to preside over a meeting of the Board.
57 In the case of the applicant, the summons, which was issued on 4 May 2009, refers to a special investigation pursuant to the 2009 Authorisation and Determination, and that Authorisation and Determination was made on 1 May 2009. The respondents accept that the bulk of the evidence or material relied on by the examiner must have been collected under the 2005 Authorisation and Determination as extended. The applicant submits that the extensions to the 2005 Authorisation and Determination were invalid and therefore the evidence obtained under them was unlawfully obtained. It followed, so the applicant submits, that the summons was invalid.
58 The respondents met this ground by claiming that Messrs Lawler and Negus were authorised to preside over the relevant meetings of the Board and that therefore there had been no breach or failure to comply with the ACC Act.
59 Section 19 of the Australian Federal Police Act 1979 (Cth) (“the AFP Act”) provides, relevantly:
“19 Absence etc. of Commissioner or Deputy Commissioner
(1) At any time when the Commissioner or a Deputy Commissioner is absent from duty or from Australia or is, for any other reason, unable to perform the functions of the Commissioner or a Deputy Commissioner, as the case may be, the next most senior member who is available has, and may exercise, all the powers (except a power to make a declaration under subsection 40D(4)), and shall perform all the functions and duties, of the Commissioner or the Deputy Commissioner, as the case may be.
(1A) The Minister may determine the remuneration and allowances of a person who exercises the powers, and performs the functions and duties, of the Commissioner under subsection (1).
(1B) The Commissioner may determine the remuneration and allowances of a person who exercises the powers, and performs the functions and duties, of a Deputy Commissioner under subsection (1).
(1C) A person is not entitled to be paid remuneration or allowances under this section for exercising the powers, and performing the functions and duties, of the Commissioner or a Deputy Commissioner for less than one week.
(2) The exercise of the powers and the performance of the functions and duties of the Commissioner or of a Deputy Commissioner by a member under this section does not affect the exercise of any power or the performance of any function or duty by the Commissioner or by the Deputy Commissioner, as the case may be.
(3) The validity of anything done by a person purporting to act in accordance with this section shall not be called in question on the ground that the occasion for his or her so acting had not arisen or had ceased.
(4) For the purposes of subsection (1), the order of seniority of members is as determined by the Commissioner.
(5) In this section, except so far as the contrary intention appears, a reference to the Commissioner or to a Deputy Commissioner shall be read as including a reference to an acting Commissioner or acting Deputy Commissioner, as the case may be, appointed under section 18.”
60 The applicant submits that s 19(1) is restricted to powers, functions and duties under the AFP Act and does not authorise the next most senior member to perform the role of presiding over a meeting of the Board under the ACC Act. The applicant referred to s 69C of the AFP Act in support of his argument. This section gives the Commissioner the power to delegate in writing to certain officers, all or any of the Commissioner’s powers, functions or duties under the Act. I am unable to see how s 69C assists in the interpretation of s 19 of the AFP Act, which must be construed according to its terms. The applicant also referred to s 17(4) of the AFP Act, which provides that the Commissioner holds office on such terms and conditions (if any) in respect of matters not provided for by the Act as are determined by the Governor-General. The applicant suggested that this subsection is directed to powers, functions and duties of the Commissioner under other Acts. I do not think that is right. Section 17(4) is directed to terms and conditions of the Commissioner’s office not provided for (that is, not dealt with) in the AFP Act. They are to be determined by the Governor-General. In my opinion, the words in s 19(1) of the AFP Act are quite general and there is no reason to restrict them to powers, functions and duties under the AFP Act.
61 Section 7B(3) of the ACC Act refers to the Commissioner of the Australian Federal Police, and the respondents rely on s 20 of the Acts Interpretation Act to support their contention that the reference in s 7B(3) includes the member identified in s 19(1) of the AFP Act. Section 20 of the Acts Interpretation Act is in the following terms:
“20 Mention of an officer in general terms
Where in an Act any person holding or occupying a particular office or position is mentioned or referred to in general terms, such mention or reference shall unless the contrary intention appears be deemed to include all persons who at any time occupy for the time being, or perform for the time being the duties of, the said office or position.”
62 The applicant submits that s 20 of the Acts Interpretation Act is not engaged by s 7B(3) and s 7E of the ACC Act because the reference to the Commissioner of the Australian Federal Police in s 7B(3) is not a mention or reference to a person holding or occupying a particular office or position in general terms. The submission is that a mention or reference in an Act to, for example, a director of a company or an officer of an organisation would be a mention or reference in general terms, but a mention or reference to an office occupied by one person is not a mention or reference in general terms.
63 A similar issue arose in the case I have heard (see [12]) and I had the benefit of detailed submissions on the point in that case. Both parties referred me to the submissions in that case.
64 In my opinion, the Commissioner of the Australian Federal Police is mentioned or referred to in the ACC Act in general terms, such that the deeming provision in s 20 of the Acts Interpretation Act is engaged. I have reached that conclusion for a number of reasons. First, there are some authorities that touch on s 20 of the Acts Interpretation Act and, so far as they go, they suggest that there is no distinction of the type advanced by the applicant: Smith Kline & French Laboratories (Aust) Ltd v Secretary, Department of Community Services and Health (1990) 22 FCR 73 at 75 per Gummow J; Registrar of Aboriginal Corporations v Barker (1997) 81 FCR 53; Lim v Secretary, Department of Education, Employment and Workplace Relations (No 2) [2008] FCA 1752 at [44] per Bennett J; Gazal Apparel Pty Ltd v Davies (2007) 247 LSJS 391 at 396 [35] per Doyle CJ. Secondly, the subject of what is to be mentioned or referred to in general terms is not the office or position itself, but the person holding or occupying a particular office or position. There is no reason why that should be restricted only to those cases where the person is a member of a class of persons. The distinction suggested by the applicant seems to me to be an artificial one. It is not obvious why the deeming provision in s 20 of the Acts Interpretation Act would apply in the case of a deputy commissioner of an organisation, assuming there were two or more deputy commissioners, but not apply in the case of the commissioner of an organisation, or why it would not apply to a person lower down in the hierarchy of an organisation who happens to be the only holder of a particular office or position. Such, however, are the consequences of the interpretation of s 20 of the Acts Interpretation Act proposed by the applicant. Finally, the interpretation of s 20 which I think is the correct one, will not frustrate or impede the intention of Parliament because the deeming provision itself does not apply if a contrary intention appears in the relevant legislation. I should add that I do not think the ACC Act reveals a contrary intention in this case.
65 In my opinion, the rule in s 20 of the Acts Interpretation Act applies, there is no contrary intention indicated in the ACC Act, and the extensions to the 2005 Authorisation and Determination did not involve a breach of, or failure to comply with, the ACC Act.
66 I do not think the fourth ground has sufficient prospects of success to justify an interlocutory injunction restraining the examiner from conducting the proposed examination of the applicant.
Ground 5
“The decision to issue the Summons is invalid, and the Summons issued pursuant to that decision is of no effect, in that it was beyond the power of the Third Respondent to issue a summons under s 28 of the Act to summons a person to appear before an examiner to give evidence concerning allegations relating to any and all persons that may have been, may presently be, or may in the future be involved in such an extensive and open-ended range of alleged activities extending for 19 years into the past, as well as into the future, and to attend from day to day unless released from further attendance. The Act does not grant examiners the power to issue summonses to attend examinations that are oppressive in their scope.”
67 The examiner is proposing to conduct an examination of the applicant for the purpose of a special ACC investigation (see s 24A of the ACC Act). It is the Board which authorises the Commission to undertake a special investigation and determines that the investigation is a special investigation: s 7C of the ACC Act. A special investigation is an investigation involving matters relating to federally relevant criminal activity. The phrase federally relevant criminal activity is defined in s 4 as meaning:
“(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.”
The phrase relevant criminal activity is also defined in s 4:
“relevant criminal activity means any circumstances implying, or any allegations, that a relevant crime may have been, may be being, or may in future be, committed against a law of the Commonwealth, of a State or of a Territory.”
68 It is to be noted that a relevant criminal activity includes a relevant crime that may in the future be committed. It is a wide definition. The activities identified in the 2009 Authorisation and Determination relate to a substantial period of time which commences on 1 January 1990. It is true that the examination of the applicant may be a substantial one. However, I know of no principle which provides that the prospect of a substantial examination is oppressive such that the summons requiring a person to attend an examination is invalid. Having regard to the scope of the 2009 Authorisation and Determination, there is no reason to think that the exercise of the power to issue a summons referring to the allegations identified in the 2009 Authorisation and Determination was other than a proper exercise of the power.
69 I do not think the fifth ground has sufficient prospects of success to justify an interlocutory injunction restraining the examiner from conducting the proposed examination of the applicant.
A further ground of review
70 The substantive argument on the applications took place on 5 June 2009. At that time, the applicant relied on the five original grounds of review. The applicant had issued a notice to produce dated 4 June 2009, seeking the Reasons document, the Statement of Facts and Circumstances document and the Legal Submissions document. At the outset of the applicant’s argument, I was not satisfied that the documents were relevant to the applications. At the conclusion of submissions on 5 June 2009, the applicant renewed his application that the documents be produced. On 9 June 2009, I ordered the respondents to respond to the notice and produce the Reasons document, the Statement of Facts and Circumstances document and the Legal Submissions document. That was duly done.
71 The respondents also chose to respond to an earlier notice to produce dated 15 May 2009 requiring production of the following documents:
“The Board minutes of the meeting of the Board of the Australian Crime Commission held on 30 April 2009.”
72 Two documents were produced by the respondents. The first document is entitled:
“Out of session vote
30 April 2009
Record of Discussion”
The second document was entitled:
“Vote on ACC Board of Out-of-Session Resolution
Title: High Risk Crime Groups Special Investigation No 2”
Both documents were heavily redacted.
73 At that point, the applicant sought to do two things. First, he sought to introduce two further grounds of review as follows:
“The Determination is invalid in that:
(a) the Special Investigation the subject of the Determination was not validly authorised by the Board as it was not authorised by a valid resolution of the Board, in that being a purported resolution out of Board meeting, the provisions of s 7J of the Act were not complied with;
(b) the purported resolution of the Board was not a valid determination in writing as required by subsections 7C(1) and 7C(3) of the Act;
(c) the Determination purports to have been made by resolution of the Board on 30 April 2009 and there was no such resolution.”
and:
“The decision to issue the Summons is invalid, and the Summons issued pursuant to that decision is of no effect, in that:
(a) the Special Investigation in relation to which the Summons was issued was not validly authorised by the Board as it was not authorised by a valid resolution of the Board, in that being a purported resolution out of Board meeting, the provisions of s 7J of the Act were not complied with;
(b) the purported resolution of the Board was not a valid determination in writing as required by subsections 7C(1) and 7C(3) of the Act;
(c) the Summons relies upon a determination made by resolution of the Board on 30 April 2009 and there was no such resolution.”
This is effectively one ground of review, albeit attacking two decisions, and I will refer to it as such.
Secondly, the applicant sought to challenge the extent of the respondents’ redactions to the documents.
74 I allowed the applicant to rely on the further ground of review. It seemed to me that I could rule on the applications having regard to the five original grounds of review, but then further applications could be made based on the foreshadowed further ground of review. The respondents accepted that this was so and accepted that they could not show any prejudice if the applicant was permitted to rely on the further ground of review. There was a challenge to the 2009 Authorisation and Determination in the document which originated the proceedings.
75 Whilst maintaining a claim that the respondents were not permitted to redact the two documents to the extent to which they had, the applicant outlined three arguments in support of the further ground of review. They were as follows:
1. There was no resolution of the Board making the 2009 Authorisation and Determination.
2. The Board had approved the resolution outside a meeting of the Board. In those circumstances, the Board was required to comply with s 7J of the ACC Act, which is in the following terms:
“7J Resolutions outside of Board meetings
(1) This section applies to a resolution:
(a) which, without being considered at a meeting of the Board, is referred to all members of the Board; and
(b) of which:
(i) if subparagraph (ii) does not apply—a majority of those members (not including the CEO); or
(ii) if the resolution is that the Board 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—at least 9 Board members (not including the CEO but including at least 2 eligible Commonwealth Board members);
indicate by telephone or other mode of communication to the Chair of the Board that they are in favour.
(2) The resolution is as valid and effectual as if it had been passed at a meeting of the Board duly convened and held.”
The applicant contended that s 7J had not been complied with because the members of the Board had indicated that they were in favour of the resolution not to the Chair of the Board, as required by the section, but to the Chief Executive Officer. The applicant referred to various authorities dealing with the common law principles as to the conduct of meetings and the position of the Chair of a meeting. I will not refer to them all. I simply note two of them: National Dwellings Society v Sykes [1894] 3 Ch 159 at 162 per Chitty J; Kelly v Wolstenholme [1991] 4 ACSR 709 at 712 per Young J.
3. The Board had treated the resolution as passed after nine members had indicated that they were in favour of it, and without regard to the views of two members who indicated that they also were in favour of the resolution. Such a procedure was, so it was contended, contrary to the Board acting as a Board.
76 The respondents provided a further response to the notice to produce dated 15 May 2009 in that copies of the two Board documents were produced with some of the previously redacted parts now open. Claims for public interest immunity, legal professional privilege and lack of relevance was made in relation to those parts of the documents which remained redacted. A confidential affidavit of Mr James Edgar Duffy, the General Manager of Groups and Targeting of the Commission, sworn on 15 June 2009 was put before me and unredacted copies of the documents were annexed to the affidavit. I was invited to look at the unredacted copies of the documents if I considered it would assist me in determining the claim for public interest immunity.
77 I held a hearing in the applications on 18 June 2009 during which I said:
“As to the two Board documents, being the out of session vote document dated 30 April 2009 and the vote on ACC out-of-session Resolution document:
1. I have no reason to think the claim for non-disclosure on the basis of legal professional privilege is not properly made.
2. I am not presently satisfied of the claim based on public interest immunity. I have read the documents in unredacted form and I have also read Mr Duffy’s affidavit sworn on 15 June 2009 in unredacted form. It is as to the first of the three steps that I am not presently satisfied. In other words, I am not presently satisfied that there is a category of public interest which relates to the documents. It does not appear to be a ‘contents’ claim and I am not presently satisfied that it is a ‘class’ of documents claim. I will give the respondents the opportunity to make further submissions if they wish to do so.
3. As to the relevance objection, it seems to me that the whole of the documents are relevant having regard to the ground of review and what has been disclosed. At the very least it provides a context for what has been disclosed. Of course, none of this is to say that the degree of relevance is not a consideration if and when the third step in the public interest immunity claim is reached.”
78 I was told by the respondents’ counsel that the applicants had that day issued another notice to produce. That notice to produce seeks documents relevant to the further ground of review.
79 At this point, the respondents sought a short adjournment to take instructions. Upon resuming, the respondents’ counsel said she had instructions to concede that there was a serious question to be tried in relation to the further ground of review. There was then argument as to whether, despite the concession, the respondents should be required to answer, or answer further, what were now two notices to produce (that is, notices to produce dated 15 May 2009 and 18 June 2009). The respondents contended that no answer, or further answer, was necessary in view of the concession. The applicant submitted that because the strength of the serious question to be tried is relevant to the balance of convenience the notices to produce should be answered unless I have already reached the conclusion that interlocutory injunctions should be granted. For reasons I will give in my discussion of the balance of convenience, I do not think any further production under the notices to produce will advance the determination of the applications.
Balance of convenience
80 It is not necessary for me to consider the balance of convenience in relation to the five original grounds of review. Indeed, it is difficult to address that issue on the assumption (contrary to my view) that there is a serious question to be tried because, in assessing the balance of convenience, the applicant’s likelihood of success is a relevant factor (see [8]-[10] above).
81 It is necessary to consider the balance of convenience in relation to the further ground of review. No doubt, the applicant’s likelihood of success is relevant to the balance of convenience. However, two important points must not be overlooked. First, leaving aside cases which on their face are obviously strong or obviously weak, it would be dangerous, and probably futile, to attempt too precise an assessment of an applicant’s prospects of success. Any assessment is inevitably made on imperfect material and argument. This leads to the second point. It is not appropriate, in effect, to try the proceeding in order to determine an applicant’s prospects of success (see Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 at 622-623; World Series Cricket Pty Ltd v Parish (1977) 16 ALR 181 at 186 per Bowen CJ). It was for these reasons, and because I think the balance of convenience clearly favours the refusal of interlocutory relief, that I considered any further answer to the notices to produce was unnecessary in terms of resolving the present applications.
82 In my opinion, the balance of convenience favours the refusal of interlocutory relief.
83 The applicant did not put forward any evidence on the balance of convenience. Nevertheless, he identified two matters which he submitted support the granting of interlocutory relief. First, he submitted that he will suffer inconvenience and cost if he is required to attend what will potentially be a substantial examination. Secondly, he submitted that there is a possibility of something emerging from the examination (if it goes ahead) which is later used against him. That should not be permitted because he may ultimately establish in these proceedings that the summons is invalid. The applicant acknowledges that the ACC Act contains provisions which, whilst having the effect of removing the privilege against self-incrimination, provide that self-incriminating evidence is not admissible in evidence against the examinee in criminal proceedings or a proceeding for the imposition of a penalty (s 30(4) and (5)). The applicant submitted that, despite these provisions, something may emerge that is later used against him. He referred to this as a derivative use of examination material. The applicant also put a submission which must be viewed as a submission in the alternative to the submissions with respect to the above matters. It was that he would not answer any questions put to him by the examiner and therefore he would face prosecution under s 30 of the ACC Act. I cannot see how, if the applicant chooses not to answer questions on a resumed examination, that strengthens the applicant’s case on the balance of convenience compared with his case if he chooses to answer questions. The applicant also emphasised the fact that there is a serious question to be tried with respect to a quite fundamental aspect of the procedure laid down by the ACC Act, namely, whether there was a resolution of the Board in relation to the 2009 Authorisation and Determination.
84 The respondents relied on an affidavit sworn by Mr Duffy on 4 June 2009. He refers to the fact that there are a number of examination summonses which are challenged, each challenge raising essentially the same grounds of review. The details are set out in his affidavit. Mr Duffy states that the examination of the applicant forms part of a national investigation strategy. He deposes to the fact that the context of the strategy is the escalation of violence-related activities surrounding outlaw motor cycle groups. The strategy includes a comprehensive examination schedule currently comprising a large number of witnesses. Mr Duffy deposes to the inconvenience which will result if the examination of the applicant and others is not able to proceed. He states that such a situation will leave a significant intelligence gap which may have an operational impact. He states that, as part of an ongoing strategy, there is a coordinated approach to gain the most intelligence and best evidence available to enable ongoing investigations and, ultimately, prosecutions. Mr Duffy states that any delay of the process will have a cumulative effect in frustrating the investigation and preventing timely action being taken, based on the intelligence and evidence obtained. He also states that the intelligence is vital to the ongoing investigations. It is true that a number of Mr Duffy’s statements are quite general, but I see no reason not to accept them.
85 The respondents referred to Watt v Australian Crime Commission [2004] FCA 1669 (“Watt”). The applicant in that proceeding sought an interlocutory injunction restraining an examiner from requiring him to answer questions at an examination conducted under the ACC Act which he (the applicant) objected to answering upon the ground that to do so may tend to interfere with the administration of justice by reason of the applicant’s involvement in confiscation proceedings in the Supreme Court of the Northern Territory. Mansfield J considered three questions. First, he considered whether, as a matter of law, an examinee may object to answering questions which may tend to incriminate him and which, by reason of him answering them, might have the additional quality of constituting a real or substantial risk of interference with the course of justice. Mansfield J considered that the proposition of law was arguable but not strongly arguable (at [27]). Secondly, Mansfield J considered whether, as a matter of fact, the compulsory interrogation of the applicant under the ACC Act involved a real or substantial risk of interference with the administration of justice in relation to the confiscation proceedings. His Honour found that there was no serious question to be tried in relation to that issue (at [21]). Thirdly, Mansfield J considered the balance of convenience. He decided that it favoured the refusal of an interlocutory injunction.
86 Watt is clearly distinguishable from the circumstances of the applications before me. However, I note Mansfield J’s reference to the public interest in the timely progression of examinations under the ACC Act. His Honour, after identifying the particular delay relevant in that case, said (at [25]):
“That delay in the Examiner being able to complete the examination, and perhaps to progress it much or at all, in a matter which is of public importance is itself very significant. The nature of the ACC, its functions under the ACC Act, and the nature of the special investigation are sufficient reason to be satisfied of its importance, and of the timely gathering of information.”
(See also CC v Australian Crime Commission [2005] FCA 754 at [15]).
87 I recognise that an examination pursuant to an examination summons may represent a substantial intrusion into the life and affairs of a person. However, in relation to the further ground of review, I think the balance of convenience favours refusal of the applications for interlocutory injunctions. The public interest in the examinations proceeding expeditiously is substantial, and it will be affected adversely by the delay occasioned by interlocutory injunctions and the delays associated with the legal proceedings. The delay associated with the latter may be considerable, even if the Court adopts all means available to it to advance the proceedings to an early resolution. The applicant may suffer the inconvenience and costs associated with an examination, but he has the protections provided by s 30(4) and (5) of the ACC Act.
Conclusion
88 The respective applications by AA, BB, CC and DD for interlocutory injunctions restraining the third respondent in each proceeding from proceeding with the examination of the applicant are refused.
| I certify that the preceding eighty-eight (88) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko. |
Associate:
Dated: 22 June 2009
| Counsel for the Applicants: | Mr M L Abbott QC with Mr T Cox (2 June 2009) Mr W J N Wells QC with Mr T Cox (5, 11, 15, 18 June 2009) Mr T Cox (9 June 2009) |
|
|
|
| Solicitor for the Applicants: | Patsouris & Associates |
|
|
|
| Counsel for the Respondents: | Ms S J Maharaj QC (2 June 2009) Ms S J Maharaj QC with Mr R Prince (5, 18 June 2009) Ms S J Maharaj QC with Mr G Camilos (15 June 2009) Mr G Camilos (9, 11 June 2009) |
|
|
|
| Solicitor for the Respondents: | Australian Government Solicitor |
| Dates of Hearing: | 2, 5, 9, 11, 15, 18 June 2009 |
|
|
|
| Date of Judgment: | 22 June 2009 |
