FEDERAL COURT OF AUSTRALIA
Z v Australian Crime Commission [2010] FCA 803
FEDERAL COURT OF AUSTRALIA
Z v Australian Crime Commission [2010] FCA 803
CORRIGENDUM
1. Delete paragraph number 33 of the Reasons for Judgment and renumber the paragraphs following.
| I certify that the preceding one numbered paragraph is a true copy of the Corrigendum to the Reasons for Judgment herein of the Honourable Justice Reeves. |
Associate:
Dated: 23 November 2010
IN THE FEDERAL COURT OF AUSTRALIA | |
| Applicant | |
AND: | Respondent |
DATE OF ORDER: | |
WHERE MADE: |
THE COURT ORDERS THAT:
1. The amended application filed on 17 March 2009 be dismissed.
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.
NORTHERN TERRITORY DISTRICT REGISTRY | |
GENERAL DIVISION | NTD 21 of 2008 |
BETWEEN: | Z Applicant
|
AND: | AUSTRALIAN CRIME COMMISSION Respondent
|
JUDGE: | REEVES J |
DATE: | 30 july 2010 |
PLACE: | brisbane (heard in darwin) |
REASONS FOR JUDGMENT
1 On 21 October 2008, a summons was issued to the applicant, Z (a pseudonym), requiring him to attend before an Australian Crime Commission examiner to give evidence in connection with a special investigation being conducted by the Commission. Z duly attended with his counsel. At the outset of the hearing before the examiner, Z’s counsel raised a number of objections to the power of the Commission to make the determination upon which the summons was founded. After hearing submissions from counsel, the examiner rejected Z’s objections. Z then indicated, through his counsel, that he proposed to issue proceedings in the Federal Court of Australia, seeking to challenge the validity of the determination and the summons upon which it was based.
2 Z subsequently issued these proceedings under s 39B of the Judiciary Act 1903 (Cth). The amended application seeks two substantive orders as follows:
1. A declaration that the Australian Crime Commission Special Investigation Authorisation and Determination (High Risk Crime Groups) 2005 as amended is invalid.
2. A declaration that summons No 0660/08 issued to the Applicant and dated 21 October 2008 is invalid.
3 For the reasons that follow, I do not intend to make either of these declarations. Before identifying the specific challenges to the validity of the determination and the summons, I propose to set out the basic legislative setting, the general relevant factual background and the facts that have been agreed between the parties. When I come to consider each of the specific challenges (below), I propose to set out any additional factual background and legislative provisions that are specific to that ground of challenge.
Legislative setting, general factual background and agreed facts
4 Under s 7C(1) of the Australian Crime Commission Act 2002 (Cth) (“the Act”), the Board of the Commission, established under s 7B of the Act, has a number of functions, including a function to make determinations about certain matters, under s 7C(1)(d), as follows:
to determine, in writing, whether such an operation is a special operation or whether such an investigation is a special investigation. (emphasis added)
The “such” (emphasised above) is referring to an operation or investigation the Board has authorised in writing the Commission to undertake under s 7C(1)(c). The expression “special ACC operation/investigation” is defined in s 4 of the Act to mean an intelligence operation or investigation the Board has determined to be a special operation or investigation. The significance of the Board determining that an operation or investigation is a special operation or investigation is that the Commission’s officers may then employ the significant coercive powers set out in this Act in relation to that special operation or investigation. They include the powers to issue a warrant (s 22); to conduct an examination (s 24A); to summon witnesses and take evidence (s 28); and to require a person to produce documents (s 29).
5 The determination in issue in these proceedings is entitled “The Australian Crime Commission Special Investigation Authorisation and Determination (High Risk Crime Groups) 2005”. The determination was initially made at a Board meeting held on 27 July 2005 (“the first determination”). Thereafter, the first determination was extended on three occasions at Board meetings held on 7 June 2006 (“the second determination”), 14 June 2007 (“the third determination”) and 25 June 2008 (“the fourth determination”). Where appropriate in these reasons, I will refer to these four determinations together as “the determinations”.
6 It is agreed between the parties that at all relevant times, Mr Michael Keelty occupied the office of Commissioner of the Australian Federal Police and, under s 7B(3) of the Act, was the Chair of the Board. It is also agreed that Mr Keelty did not preside at the meetings of the Board when the third and fourth determinations were made. These agreed facts are particularly significant to Z’s challenges to the third and fourth determinations. This is so because s 7E of the Act provides:
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.
I will return to this aspect when I consider the specific challenges to the determinations below.
7 At this point, it is convenient to set out the balance of the agreed facts as they relate to the challenges to the determinations. They are as follows:
1. Commissioner Keelty chaired the Board meeting held on 27 July 2005.
2. Commissioner Keelty chaired the Board meeting held on 7 June 2006.
3. Mr Lawler, a member of the Australian Federal Police, chaired the Board meeting held on 14 June 2007.
4. Mr Negus, a member of the Australian Federal Police, chaired the Board meeting held on 25 June 2008.
8 Mr Lawler and Mr Negus attended the meetings of the Board indicated above in their capacity as the “Acting Commissioner” of the Australian Federal Police. I will set out the relevant provisions of the Australian Federal Police Act 1979 (Cth) (“the AFP Act”) when I come to consider this issue below.
9 Under s 28(1) of the Act, an examiner who is appointed by the Governor-General under s 46B of the Act, may issue a summons to 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.
10 The summons in issue in these proceedings was issued by Mr W Boulton (who was a duly appointed examiner) at 11.30 am on 21 October 2008 (“the summons”). It required Z to:
(a) attend at 2.30 pm on Wednesday 29 October 2008 before an examiner at an examination to be held for the purposes of the said special investigation at the Family Court of Australia, TCG Building, Ground Floor, 80 Mitchell Street, Darwin to give evidence of federally relevant criminal activity, as referred to in clause 3 of Schedule 1 of Annexure A, by a high risk crime group, namely an outlaw motor cycle gang; and
(b) attend from day to day unless excused or released from further attendance.
11 The following facts have been agreed between the parties relating to the challenges to the summons:
1. The document at tab 22 of Exhibit “A1” constitutes the reasons for the issue of the summons as recorded by Mr Boulton under s 28(1A) of the Act. I will identify the relevant aspects of this document when I come to consider the challenges to the summons later in these reasons. I will do likewise in relation to the summons and accompanying documents referred to in the next sub-paragraph.
2. Z was served with the summons, a copy of which appears at tab 23 of Exhibit “A1”. The summons was accompanied by:
(a) copies of what purported to be the determinations at Annexure A;
(b) a statement of rights and obligations under s 29B of the Act at Annexure B;
(c) a one page document headed “Explanatory Notes”.
Issues raised
12 Z has challenged the validity of the determinations, individually and collectively, on nine grounds. In summary they are as follows:
1. The first determination is invalid because the resolution of the Board made on 27 July 2005 was not a determination in writing that the investigation was a special investigation.
2. The second determination is invalid because at the Board meeting on 7 June 2006, the Board did not have before it the first determination, or the proposed amended first determination incorporating the second determination.
3. The third and fourth determinations are invalid because the Board meetings on 14 June 2007 and 25 June 2008 respectively were not properly constituted as Mr Keelty did not preside at those meetings.
4. The third determination is invalid because at its meeting on 14 June 2007, the Board did not consider or pass any resolution in accordance with the third determination, or the first determination, as amended by the second, and the proposed third, determination.
5. All of the determinations are invalid because the Board failed, in accordance with s 25D of the Acts Interpretation Act 1901 (Cth), to set out in any of the instruments of determination, the reasons for the decision constituting the determinations; including the findings on material questions of fact and the evidence, or other material, upon which those findings were based.
6. All of the determinations are invalid because the purposes of the investigation, as set out in paragraph 8 of the first determination, exceeded the powers of the Board.
7. All of the determinations are invalid because there is no record, or any other evidence, of the Board complying with the requirements of s 7C(1)(d) and s 7C(3) of the Act, to consider whether ordinary methods of police investigation were likely to be effective.
8. All of the determinations are invalid because the Board exceeded its powers when it made the first determination, by impermissibly delegating to persons other than the Board, the power to identify the class or classes of persons who were authorised to participate in the special investigation.
9. All of the determinations are invalid because the Board exceeded its powers when it made the first determination, by impermissibly and prospectively delegating its obligation to identify, pursuant to s 7C(4)(a) of the Act, the circumstances, or allegations, constituting the federally relevant criminal activity.
13 Z has also challenged the validity of the summons on five grounds. In summary, they are as follows:
1. The determinations are invalid and therefore the summons upon which they are based is invalid.
2. The summons was not accompanied by a proper copy of any of the determinations, as required by s 28(2) of the Act.
3. The summons did not require Z to give evidence as “a witness” into federally relevant criminal activity, as required by s 28 of the Act.
4. The summons did not comply with s 29A(3) of the Act, in that it was not accompanied by a written statement setting out the rights and obligations conferred or imposed by s 29B of the Act on any person who was, or might be, “otherwise given” the summons.
5. In the circumstances, Mr Boulton, the examiner, could not have been satisfied that it was reasonable to issue the summons in accordance with s 28(1A) of the Act.
Procedural history
14 Since these proceedings are almost two years old, it is appropriate to record some of the rather long and staccato-like procedural history of this matter. This was largely caused by a raft of intervening single judge and Full Court decisions bearing upon the same or very similar legal and factual issues as arise in this matter.
15 I heard this matter in Darwin on 25 and 26 March 2009. Soon after I reserved my decision in this matter, two judges delivered three decisions on similar and, in some cases, identical, factual and legal issues. They were: SS v Australian Crime Commission (2009) 256 ALR 474; [2009] FCA 580 (“SS”) per Jagot J, delivered on 29 May 2009; AA v Board of the Australian Crime Commission (2009) 178 FCR 171; [2009] FCA 642 (“AA1”) per Besanko J, delivered on 22 June 2009; and GG v Australian Crime Commission [2009] FCA 759 (“GG”) per Besanko J, delivered on 20 July 2009.
16 As a result, I sought further submissions from the parties as to how I should approach these decisions in this matter, consistent with the judicial comity principle. I was subsequently informed by the applicant’s solicitors that the decisions in SS and GG were to be appealed to the Full Court. Accordingly, they submitted that I should defer further consideration of this matter until the Full Court delivered its decisions. The Commission did not oppose that course, so that is what I did.
17 The appeal in SS was discontinued shortly before it was due to be heard in late 2009. However, the appeal in GG proceeded to a hearing and the Full Court delivered its decision in that matter on 26 February 2010: see (2010) 182 FCR 513; [2010] FCAFC 15 (“GGFC”). In that decision, the Full Court allowed the appeal and set aside the summons that had been issued to GG.
18 In addition to this Full Court decision, there have been two others involving various relevant aspects of the Act. They are Australian Crime Commission v NTD8 (2009) 177 FCR 263; [2009] FCAFC 86 and C Inc v Australian Crime Commission (2010) 113 ALD 226; [2010] FCAFC 4 (“C Inc”).
19 In early March 2010, I arranged to relist this matter and made orders for the parties to file and serve further submissions directed to the effect all these decisions may have on these proceedings. These orders had to be extended after the applicant failed to comply with them. As a consequence, the last set of submissions was not filed until mid-June 2010.
20 To add to the complexity of this procedural history, after I made these orders, two further single judge decisions were delivered which dealt with some relevant aspects of the Act. In order, they were R v Bunn (2010) 160 NTR 1; [2010] NTSC 15 (“Bunn”) per Southwood J, delivered 23 April 2010 and AA v Board of the Australian Crime Commission [2010] FCA 553 (“AA2”) per Foster J, delivered on 2 June 2010. In relation to the former, Bunn, Ms Maharaj QC, for the Commission, informed me that decision had since been appealed. Because of that and because it is a criminal matter, I have not relied upon it in these reasons. I should also record that Mr Abbott QC, for Z, only relied upon Bunn to submit that Mr Boulton, the examiner, should have given evidence before me. As will emerge later in these reasons, I have rejected that submission for other reasons. The history of the latter, AA2, also requires a little further explanation. The decision of Besanko J in AA1 (above) related to an interlocutory injunction sought by AA. After Besanko J delivered that decision, the substantive proceedings were transferred to the Sydney Registry of the Court. Thereafter that matter, together with 13 others involving the same or similar issues under the Act, were heard by Foster J. AA2 was the decision on those 14 matters.
21 I will now turn to consider each of the issues identified above. In the process, I will take into account the effect of these various decisions and, where appropriate, the application of the comity principle. While I am mentioning that principle, it is appropriate to make some comments about it.
the comity principle
22 Given the procedural history set out above, it is not surprising that some of the decisions I have mentioned included a consideration of the comity principle. In AA1, Besanko J did not consider it necessary to discuss the principle because he reached his conclusions independently of the decision of Jagot J in SS: see AA1 at [36]. Nonetheless, his Honour did refer to various decisions of this Court on the operation of the principle including Undershaft (No 1) Ltd v Federal Commissioner of Taxation (2009) 253 ALR 280; [2009] FCA 41 (“Undershaft”).
23 In AA2, Foster J referred to the same authorities, but did not need to examine them closely: see AA2 at [74]. However, his Honour appeared to apply the comity principle by agreeing with the conclusions reached by Besanko J in GG, quite apart from the fact that they had been endorsed by the Full Court in GGFC: see AA2 at [79].
24 In the case of Undershaft that was specifically mentioned by both Besanko J and Foster J, Lindgren J was called on to consider how the comity principle applied where there existed a decision by a single judge of this Court on similar issues: in that case the decision of Edmunds J in Virgin Holdings SA v Commissioner of Taxation (2008) 70 ATR 478; [2008] FCA 1503 (“Virgin Holdings”). His Honour began by stating his understanding of the role of judicial comity as follows (at [70] to [74]):
First, I must embark on my own independent consideration of the issues for decision with a view to reaching my own independent conclusion on them. The oath of judicial office requires me to do no less. If my own conclusion, independently reached, is consistent with his Honour’s, there is no scope for his decision to influence me beyond “fortifying” me in my conclusion.
Second, I must not follow his Honour should I reach the view that his Honour was “clearly” or “plainly” wrong.
Third, I may (not must) follow his Honour’s (supposedly inconsistent) decision once it is clear that that decision is not “plainly” or “clearly” wrong.
Fourth, accepting the strong desirability of certainty and stability in judicial decision-making in the administration of justice, I will in fact follow his Honour’s inconsistent decision unless I conclude that it was clearly or plainly wrong, or that for some other reason those same interests of justice demand that I adhere to my own conclusion in preference to his Honour’s supposedly erroneous one.
While the expression “clearly wrong” and “plainly wrong” may be open to criticism, they usefully remind the later judge of the interests of justice in consistency of decision-making in a system of which the individual judge is but a part. The “choice” to follow an earlier inconsistent decision of co-ordinate authority is, however, as a matter of law, discretionary and depends on the circumstances of a particular case. These will properly include considerations of the length of the period during which the earlier decision has stood, and whether it has been relied upon in the arrangement of human affairs.
25 His Honour then turned to consider various authorities to which he had been referred by the parties bearing on the question whether he should, or should not, follow Edmunds J in Virgin Holdings. In the process, he referred to the decision of French J in Hicks v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 757 where his Honour applied the principle in relation to an earlier decision of a single judge of this Court as follows (at [75] to [76]):
It is well established that a judge of this Court should follow an earlier decision of another judge unless of the view that it is “plainly wrong” …
…
… where questions of law, and statutory construction, are concerned the proposition that a judge who has taken one view of the law or a statute is ‘clearly wrong’ is one not lightly to be advanced having regard to the choices that so often confront the courts particularly in the area of statutory construction. …
26 Later (at [85)], Lindgren J referred to the decision of Mason P in Tillman v Attorney-General for the State of New South Wales (2007) 70 NSWLR 448; [2007] NSWCA 327 (at [25]), that:
…there is a rule of precedent obliging intermediate appellate courts not to depart from decisions in intermediate appellate courts in another jurisdiction [but only] on the interpretation of (a) Commonwealth legislation or (b) uniform national legislation or (c) the common law of Australia unless convinced of plain error.
See also, to similar effect, Australian Securities Commission v Marlborough Gold Mines Limited (1993) 177 CLR 485 at 492.
27 Accordingly, because Undershaft dealt with the interpretation of Commonwealth legislation, Lindgren J considered that, by reason of this factor, he should follow the decision of Edmunds J in Virgin Holdings unless he thought it to be clearly wrong or plainly wrong: at [86]. However, his Honour noted that this did not relieve him of the necessity to embark upon a full consideration of the parties’ submissions with a view to arriving at his own conclusion: see at [88]. See also Egglishaw v Australian Crime Commission (2006) 230 ALR 254; [2006] FCA 819 at [15], per Sundberg J and the cases there cited.
28 Putting aside the circularity involved, I am persuaded by his Honour’s characteristically thorough review of the authorities that because I, too, am dealing with the same Commonwealth legislation as was considered in these various decisions, I should take the same course as outlined above, where it is appropriate to do so. It follows that wherever I state hereafter in these reasons that I respectfully agree with another judge’s decision on the same or a similar issue, I have done so after making my own assessment of the submissions and circumstances in this matter. As will emerge below, I have not been forced to conclude that another judge’s decision on a particular issue is “clearly wrong”.
(1D) The first determination is invalid because the resolution of the Board made on 27 July 2005 was not a determination in writing that the investigation was a special investigation
Specific Factual Background
29 At the Board meeting on 27 July 2005, the Board had before it, as Agenda Item 4c: High Risk Crime Groups Authorisation and Determination, under the heading “Draft Resolution”, the following:
The Board: (subparagraphs a, b and c have been redacted) (d) resolved, in the terms of the instrument Australian Crime Commission Special Investigation Authorisation and Determination [High Risk Crime Groups], to authorise the ACC to undertake a Special investigation until 30 June 2006 by which time it will be reviewed. (emphasis added)
30 The instrument referred to in this agenda item was attached to the agenda (“the first draft instrument”). It was a six-page document entitled “Australian Crime Commission Special Investigation Authorisation and Determination (High Risk Crime Groups) 2005”. The following section appeared under that heading:
The Board of the Australian Crime Commission made this instrument under section 7C of the Australian Crime Commission Act 2002 by resolution at am/pm
on 2005.
Chair of the Board of the Australian Crime Commission
Dated 2005.
The time and dates in this section were left blank and it was not signed where indicated by the Chair.
31 Clauses 4 and 5 of the first draft instrument stated as follows:
4 Authorisation
Pursuant to paragraph 7C(1)(c) and subsection 7A(d) of the Act, the ACC:
(a) is authorised to investigate the matter mentioned in Schedule 1 relating to federally relevant criminal activity until 30 June 2006; and
(b) is requested to provide a report to the Board on the outcomes of this investigation at the first Board meeting after 30 June 2006.
5 Determination
Pursuant to paragraph 7C(1)(d) and subsection 7C(3) of the Act, the Board:
(a) has considered whether ordinary police methods of investigation into the matter mentioned in Schedule 1 relating to federally relevant criminal activity are likely to be effective; and
(b) determines that the investigation mentioned in Schedule 1 is a special investigation.
32 The minutes of the Board meeting held on 27 July 2005, so far as they related to Item 4c, and have not been redacted, record that:
The resolution … passed at 2.43pm.
Resolution 3.08/2005: High Risk Crime Groups
The Board:
…
d) resolved, in the terms of the instrument Australian Crime Commission Special Investigation Authorisation and Determination [High Risk Crime Groups], to authorise the ACC to undertake a Special Investigation until 30 June 2006 by which time it will be reviewed; and
33 …
Specific Legislative Provisions
34 Section 7C(1)(d) of the Act has already been set out above (see [4]) and does not require reiteration here. In addition to making a determination under s 7C(1)(d) the Board has the function under s 7C(1)(c):
to authorise, in writing, the ACC to undertake intelligence operations or to investigate matters relating to federally relevant criminal activity.
35 Before it makes a determination under s 7C(1)(d), the Board is required by s 7C(2) and s 7C(3) to consider whether methods of collecting the criminal information and intelligence that do not involve the use of the powers in the Act have been effective and whether ordinary police methods of investigation into the matters are likely to be effective, respectively.
36 Furthermore, s 7C(4) requires that a determination under s 7C(2) or s 7C(3) must:
(a) describe the general nature of the circumstances or allegations constituting the federally relevant criminal activity; and
(b) state that the relevant crime is, or the relevant crimes are or include, an offence or offences against a law of the Commonwealth, a law of a Territory or a law of a State but need not specify the particular offence or offences; and
(c) set out the purpose of the operation or investigation.
Contentions
37 Mr Abbott submitted that s 7C(1)(d) of the Act relevantly authorised the Board to determine, in writing, whether an investigation is a special investigation. However, he submitted, by its terms, the resolution of the Board made on 27 July 2005, does not “determine” to do anything. It merely authorises the Commission to do something. He compared the Board’s resolution in this case with the resolution that was considered in CC Pty Ltd v Australian Crime Commission (No 2) [2007] FCA 16 (“CC”) at [5]: “…the Board resolved, in terms of the instrument provided to the Board, to authorise the ACC to investigate the matter and determined that it shall be a special investigation” (emphasis added). Here, he submitted, the words underlined are excluded from the resolution and the word “undertake” is included instead. Furthermore, he submitted s 7C(1)(c) of the Act only authorises the Commission to “undertake” a special intelligence operation, not a special investigation, which the Board’s resolution purported to do. He submitted that because of the extraordinary coercive powers involved, the Board was required to comply strictly with the provisions of the Act when it was making a determination. He submitted that these aspects (above) demonstrated that the Board had failed to strictly comply with the provisions of the Act and its exercise of its powers therefore exceeded its jurisdiction. It followed, so he submitted, that the first determination is not a valid determination of the Board. Finally, he submitted that everything that followed the first determination also failed for want of jurisdiction.
38 Ms Maharaj submitted that the critical words of the resolution are: “… resolved, in terms of the instrument …”. She submitted that by these words, the Board had adopted the first draft instrument attached to the agenda and that draft instrument thereby became the determination. She submitted that this was entirely consistent with the decision in CC at [33]. She submitted that when one looks at the first draft instrument, (which became the determination), it addressed the concerns raised by Z, in particular clause 4 sets out the terms of the authorisation in accordance with the relevant provisions of the Act and clause 5 does likewise in relation to the determination.
Consideration
39 Mr Abbott is strictly correct in saying that the Board’s resolution of 27 July 2005, does not, on its face, determine to do anything. Instead, on its face, it only “authorise[s] the ACC to undertake a special investigation …”. Moreover, under s 7C(1)(c), the word “undertakes” appears to relate only to an intelligence operation, and not an investigation. However, in my view, the validity of the first determination (or indeed any of the determinations) cannot be determined by focusing on the words used by the Board in the resolution relating to the determination, but rather by construing the relevant provisions of the Act that specify what is required of the Board to make a valid determination under them; and then looking to see wherever the Board complied with those requirements.
40 At this point, it is appropriate to interpolate what the High Court of Australia had to say about the task of construing the provisions of legislation in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 (“Project Blue Sky”). In that case, the High Court held that a legislative provision should be construed: “by reference to the language of the instrument viewed as a whole”; by considering: “the context, the general purpose and policy of a provision and its consistency and fairness ...”, and beginning by: “… examining the context of the provision that is being construed”: at [69]. Where conflict appeared to arise from the language of particular provisions, the Court went on to observe that it: “must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions” and “… [r]econciling conflicting provisions will often require the court “to determine which is the leading provision and which the subordinate provision, and which must give way to the other”” at [70]. Finally, the Court held that: “a court construing a statutory provision must strive to give meaning to every word of the provision”: at [71].
41 In this instance, the relevant provisions of the Act that specify what is required of the Board when authorising an investigation and making a determination that the authorised investigation is a special investigation, are s 7C(1)(c), s 7C(1)(d), s 7C(3) and s 7C(4). I should add that Mr Abbott did not place any reliance on s 7C(4) for the purposes of this ground of challenge, so it is not presently necessary to consider the effect of those provisions. Furthermore, s 7C(2) only deals with a determination that an intelligence operation is a special operation, so its provisions are not relevant here where the Board was dealing with an investigation. The remaining provisions (above) give the Board the functions, among others, of authorising, in writing, the Commission to investigate federally relevant criminal activity (s 7C(1)(c)); and determining, in writing, whether such an investigation is a special investigation (s 7C(1)(d)). However, as I have already noted, before doing the latter, the Board must consider whether ordinary police methods of investigation into the matters are likely to be effective (s 7C(3)).
42 In this respect, it is important to recall the critical interrelationship I have already mentioned above (see [4] above), between the Board’s determination under s 7C(1)(d) (including 7C(3)), that an investigation is a special investigation and the triggering of the Commission’s coercive powers as set out in the Act. It is also important to note how the authorisation and determination provisions of s 7C fit into the scheme of the Act. The expression “federally relevant criminal activity”, which is the focus of the authorisation under s 7C(1)(c), is defined in s 4 of the Act to mean:
(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.
43 The situations where an offence against a law of a state has a “federal aspect” to it are defined in s 4A of the Act. Those provisions are lengthy and detailed but, in essence, they require that either: the elements of the state offences; or the circumstances in which they were committed; potentially fall within Commonwealth legislative power; or the Commission investigation of them, or intelligence operation in relation to them, is incidental to an investigation or intelligence operation in relation to an offence against a law of the Commonwealth or a Territory.
44 This interaction between State and Commonwealth laws and the peculiar statutory context in which the Commission operates was described by the Full Court in P v Board of the Australian Crime Commission (2006) 151 FCR 114; [2006] FCAFC 54 (“P”) at [27] as follows:
In order to understand the relevant aspects of the Act, it is appropriate to consider the overall governance structure which it establishes. That structure – Inter-Governmental Committee, the Board and ACC – is unusual, as are some aspects of ACC’s functions. These aspects probably reflect the fact that ACC is a creature of the Commonwealth but is to operate in areas which have been historically, and are primarily, regulated by the States. ACC’s operational and investigative functions are limited to those authorised by the Board. Such authorisation may only be granted in connection with serious and organized crime, committed or anticipated, against a law of the Commonwealth, a State or a Territory. Where the relevant law is a State law, the crime must have a federal aspect. See ss 4, 4A and 7A. The definition of “federal aspect” in s 4A is particularly complex. It is likely that the intention was to ensure constitutional validity of the Act by limiting the functions of ACC to areas in respect of which the Commonwealth Parliament might legislate. It was probably intended that ACC operate in support of agencies such as those represented on the Board, rather than in competition with them. The composition of the Board may also have been designed to prevent encroachments on the areas of responsibility of those and other Commonwealth and State law enforcement and intelligence agencies. (emphasis added)
45 As well as describing the broader constitutional and institutional context of the Act and the Commission’s operations, in my view, these observations assist to identify the purpose and policy of some of the relevant provisions of s 7C. In particular, the purpose and policy of ensuring the investigations and intelligence operations conducted by the Commission relate to an area of Commonwealth legislative power (emphasised above) is promoted by the requirements of s 7C(1)(c) which confines the Board to intelligence or investigations operations that relate to a federally relevant criminal activity, as defined in s 4 and s 4A. Further, in my view, the purpose and policy of avoiding having the Commission encroach on areas of ordinary policing responsibility, whether at a State or Federal level (also emphasised above), is promoted by s 7C(3) which requires the Board to consider whether ordinary police methods of investigation into the matters are likely to be effective, before it determines that an investigation is a special investigation.
46 However, while these matters assist to identify the broader purpose and policy of an authorisation and determination under the relevant provisions of s 7C, they do not directly answer the question: what is required to make a valid determination under those provisions? In part, the answer to that question lies in the prescriptive language, if any, employed in the relevant provisions, ie s 7C. It is self-evident that one such requirement is that any authorisation or determination under s 7C must be “in writing”. In CC, Mansfield J observed that the purpose of this requirement was: “… to secure certainty as to the terms of the determination, so that the obligations arising from the determination can be implemented and the consequences arising from actions taken by reason of the determination can be properly validated”: at [32]. I respectfully agree. I should add that the Full Court dismissed an appeal from the decision of Mansfield J in CC: see (2007) 159 FCR 282; [2007] FCAFC 96 (“CC FC”).
47 However, apart from the requirement of writing (and the requirements in s 7C(4) which are not presently relevant), there is nothing in s 7C that prescribes the form an authorisation or determination must take (see P at [34]), or even that it must be contained in one document. Accordingly, in P, the Full Court held that it would satisfy the requirements of s 7C if two documents were to be read together (see P at [38]). Furthermore, there is nothing in s 7C, or elsewhere in the Act, that prescribes how the Board must determine in writing that an operation or investigation is a special operation, or a special investigation, eg that a document be executed by affixing a common seal (see CC at [26]), or that it be by a resolution in particular terms: see SS at [32]. Thus, in CC, Mansfield J held that the Board’s resolution in that case adopted a draft instrument put before the Board, such that it (the latter) became the Board’s determination in writing: see CC at [33]. These observations are not intended to ignore provisions such as s 7G(4) that prescribes a majority vote of at least nine Board members (including at least two eligible Commonwealth members) for a determination of a special intelligence operation or a special investigation, or s 7H(2) that requires the Board to keep minutes of its meetings, or s 7C(5) that requires a copy of a determination to be given to the Inter-Governmental Committee three days after it is made. However, none of these provisions has been raised by Z in support of this ground of challenge. It follows from all this that, for present purposes, the only specific relevant requirement of a valid authorisation and determination under s 7C, is that it must be in writing.
48 In this matter (as in CC: see [36] above), the Board’s resolution began with the words: “… resolve[d] in terms of the instrument …”. The instrument referred to in the resolution was the first draft instrument attached to the agenda paper for the Board’s meeting. Mr Abbott did not submit that I should not infer this fact and even if he did, I consider that such an inference is clearly open on the evidence before me (set out at [29] – [32] above): cf a similar inference drawn by Jagot J in SS at [16]. By passing its resolution in these terms, I consider the Board adopted the first draft instrument as the Board’s determination in writing. I consider this complied with the sole relevant requirement of s 7C that the Board’s determination must be in writing. Since this is the only relevant requirement of a valid determination under s 7C, I consider that the first determination was a valid determination under the Act. I note and respectfully agree with the similar conclusions reached by Mansfield J in CC at [33], by the Full Court in CC FC at [21] and by Jagot J in SS at [31] and [35]. Indeed, I am probably bound by the decision in CC FC.
49 In other respects, I consider the terms of the first draft instrument and, therefore, the first determination, are quite specific and detailed about what the Board authorised and determined under s 7C. I note the Full Court took a similar view of the effect of the contents of the draft instrument in CC FC at [21]. In particular, clause 4 of the first draft instrument (see at [31] above), sets out the terms of the Board’s authorisation under s 7C(1)(c), that the Commission was authorised to investigate the matters in Schedule 1 of the first draft instrument relating to federally relevant criminal activity. When clause 4 is read with Schedule 1 (consistent with the observation in P at [38]), the general nature of the circumstances, or allegations, constituting the federally relevant criminal activity, have been clearly described. Furthermore, clause 5 of the first draft instrument, makes it clear that the Board determined under s 7C(1)(d) and s 7C(3), in clear and express terms, that the investigation described in Schedule 1 (which is the same as that referred to in clause 4), was to be a special investigation.
50 It follows that I do not consider the absence of the word “determination” from the Board’s resolution is significant. I consider that is overcome by the clear and specific provisions of clause 5 of the first draft instrument which, by the resolution, the Board adopted as the first determination. For the same reason, I do not consider that the presence of the word “undertake” in the Board’s resolution has the significance contended for by Mr Abbott. In my view, that, too, is addressed by the specific terms of clause 4 of the first draft instrument/first determination, which closely follow the provisions of s 7C(1)(c) and make it clear that the Board was authorising the Commission to investigate the matters mentioned in Schedule 1. In any event, I respectfully agree with the observations of Jagot J in SS that, in this context, the functions of undertaking an intelligence operation and an investigation are not mutually exclusive and, indeed, overlap: see SS at [72] to [73].
51 For these reasons, I reject this ground of challenge to the first determination.
(2D) The second determination is invalid because at the Board meeting on 7 June 2006, the Board did not have before it the first determination, or the proposed amended first determination incorporating the second determination.
Specific Factual Background
52 At the Board meeting on 7 June 2006, the Board had before it, as Agenda Item 7.2: Application for Extension of Board Authorisation and Determination: High Risk Crime Groups, under the heading “Draft Resolution”, the following:
The Board: (subparagraphs a, and b have been redacted) (c) resolved, in the terms of the instrument Australian Crime Commission Special Investigation Authorisation and Determination [High Risk Crime Groups] Amendment Number 1 of 2006, to authorise the ACC to continue to undertake a special investigation until 30 June 2007 by which time it will be reviewed; and …
53 The instrument referred to in this agenda item was attached to the agenda (“the second draft instrument”). It was a one-page document entitled “Australian Crime Commission Special Investigation Authorisation and Determination (High Risk Crime Groups) Amendment No. 1 of 2006”. The first section of the second draft instrument was in identical form to that of the first draft instrument. As with the first draft instrument, the time and dates in that section were left blank and it was not signed where indicated by the Chair: (see [30] above).
54 Clause 3 of the second draft instrument stated as follows:
Amendment of Australian Crime Commission Special Investigation
Authorisation and Determination (High Risk Crime Groups) 2005
The Australian Crime Commission Special Investigation Authorisation and Determination (High Risk Crime Groups) 2005 made by the ACC Board on 27 July 2005 is amended as follows-
Paragraph 4(a) and 4(b) delete 30 June 2006 and insert 30 June 2007.
55 The minutes of the Board meeting held on 7 June 2006, so far as they related to Item 7.2 , and have not been redacted, record that:
The Board amended the resolution and approved this unanimously at 2.40pm.
Resolution 2.08/2006: Determination extension applications – High Risk Crime Groups
The Board:
…
c) resolved, in the terms of the instrument Australian Crime Commission Special Investigation Authorisation and Determination (High Risk Crime Groups) Amendment No 1 of 2006, to authorise the ACC to continue to undertake a Special Investigation until 30 June 2007 by which time it will be reviewed; and
… .
Specific Legislative Provisions
56 The specific legislative provisions relating to this ground of challenge to the determinations are the same as for the first ground of challenge (see [33] to [35] above) and, therefore, do not require reiteration here.
Contentions
57 Mr Abbott submitted that the Board did not have before it, or refer to, the first determination that was being amended by the second determination. Instead, it merely proceeded to resolve in terms of the second draft instrument. He submitted that the Board therefore failed to have regard to a relevant matter, namely: the terms of the first determination. It followed, so he submitted, that the second determination was invalid.
58 Ms Maharaj submitted that there is no requirement in the Act for the Board to have the first determination before it, in the circumstances. She also referred to the decision of Finn J in X v Australian Crime Commission (2004) 139 FCR 413; [2004] FCA 1475 (“X”), which dealt with various aspects of a determination amending an earlier determination.
Consideration
59 As with the challenge to the first determination, I consider the question raised by this ground of challenge has to be answered by construing the provisions of the Act that specify what was required of the Board to make a valid determination or, in this case, a valid amendment to an earlier determination. Conversely, the question is not to be resolved by focusing narrowly on the wording of the Board’s resolution. Furthermore, I consider Ms Maharaj is correct in submitting that the decision of Finn J in X provides the answer to this question.
60 In X, the amending resolution referred to the determination, ie the equivalent of the first determination here, and stated it was amending: “paragraph 4(a) and 4(b), [to] delete 31 May 2004 and insert 31 May 2005.”: see X at [11]. Here, the Board’s resolution was, in the terms of the second draft instrument, to extend the period of the special investigation by one year: see the terms of the resolution set out at [54] above. Notwithstanding this difference in approach, I consider the two resolutions are relevantly similar and to the same effect. One of the applicant’s arguments in X was that the amending resolution constituted an entirely new determination and, therefore, the Board had to comply afresh with the provisions of the Act in relation to the making of a new determination: see X at [16]. In rejecting this argument, Finn J held, among other things, that a decision to extend a period of a special investigation does not alter the reason for, or the scope or purpose of, a special investigation and, therefore, the Board does not have to follow the same manner, nor comply with the same conditions as it did when it made the initial determination under s 7C: see X at [35] to [37]. His Honour added that it would be different if the amendment to the earlier determination changed the reason for, or the scope or purpose of, the special investigation: see X at [37]. Finn J also held there is no express power in the Act for the Board to amend a determination: see X at [15]. However, his Honour held that the Board had an implied power under s 33 of the Acts Interpretation Act 1901 (Cth) to amend a determination to, among other things: extend its stated period of operation: see X at [2], [24], [29] and [35]. I interpolate that it must follow that there is no express provision of the Act which specifies what is required of the Board to make a valid amendment to an earlier determination. However, this should not be taken as suggesting that the “in writing” requirements of s 7C(1)(c) and s 7C(1)(d) do not apply when the Board is exercising its implied power. Finally, Finn J held that, beyond the matters described in s 7C(4), there is no statutory requirement that any of the other matters prescribed by the Act for making a determination, must be referred to in the determination itself: see X at [21].
61 I respectfully agree with the reasoning of Finn J in X on all of these aspects. In my view, it follows from this that, the Act contains no express requirements for the Board to make a valid amending determination and, if the amending determination merely amends, and thereby extends, the period of operation of the special investigation and not the reason for, or the scope or purpose of, the special investigation, the Board does not need to review or consider afresh the terms of the first determination. It follows further that, in this matter, since the Board was merely amending and extending the period of operation of the special investigation stated in the first determination, there was no need for the Board to have before it at the Board meeting on 7 June 2006, a copy of the first determination. For these reasons, I reject this ground of challenge to the second determination.
(3D) The third and fourth determinations are invalid because the Board meetings on 14 June 2007 and 25 June 2008 respectively were not properly constituted as Mr Keelty did not preside at those meetings.
Specific Factual Background to the third determination
62 As appears from the evidence and the agreed facts, Commissioner Keelty expected to be travelling overseas from 2 June 2007 to 14 June 2007 and, therefore, did not expect to be able to attend and chair the Board meeting on 14 June 2007. On 24 May 2007, Commissioner Keelty signed a letter addressed to Federal Agent John Lawler, which stated as follows:
PERFORMING THE FUNCTIONS OF COMMISSIONER
I require you to perform the functions of Commissioner from 8.00am on Saturday 2 June 2007 until 9.00pm 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.
63 It is an agreed fact that Commissioner Keelty did not chair the Board meeting held on 14 June 2007. Instead, Mr Lawler attended and chaired that meeting in his capacity as the “Acting Commissioner” of the Australian Federal Police. In doing so, Mr Lawler was relying upon the letter of 24 May 2007 (above) from Commissioner Keelty and s 19 of the AFP Act.
64 At the Board meeting on 14 June 2007, the Board had before it, as Agenda Item 7: High Risk Crime Groups – Proposed Extension to 30 June 2008, under the heading “Form of Resolutions and Draft Instrument”, the following :
The draft instrument (Attachment A) and draft resolutions are in the form as previously settled in consultation with the Office of General Council (OGC).
Draft Resolution
The Board:
resolved, in the terms of the instrument Australian Crime Commission Special Investigation Authorisation and Determination (High Risk Crime Groups) 2005 to authorise the ACC to continue to undertake a Special Investigation until 30 June 2008 by which time it will be further reviewed.
65 The instrument referred to in this agenda item was attached to the agenda (“the third draft instrument”). It was a one-page document entitled “Australian Crime Commission Special Investigation Authorisation and Determination (High Risk Crime Groups) Amendment No. 1 of 2007”. The first section of the third draft instrument was in identical form to that of the first and second draft instruments. As with those draft instruments, the time and dates in that section were left blank and it was not signed where indicated by the Chair (see [30] and [52] respectively above).
66 Clause 3 of the third draft instrument was similar in its terms to clause 3 of the second draft instrument (see [53] above). It stated as follows:
Amendment of Australian Crime Commission Special Investigation Authorisation and Determination (High Risk Crime Groups) 2005
The Australian Crime Commission Special Investigation Authorisation and Determination (High Risk Crime Groups) 2005 made by the ACC Board on 27 July 2005 is further amended as follows-
Paragraph 4(a) and 4(b) delete 30 June 2007 and insert 30 June 2008.
67 The minutes of the Board meeting held on 14 June 2007, record (so far as they have not been redacted) that the participants in Canberra included: “Acting Commissioner John Lawler, Australian Federal Police [Chair]”. Item 1 of the minutes, under the heading “Opening of meeting by Chair”, records that:
The Chair opened the meeting at 1.00pm. The Chair noted the apology of Commissioner Keelty, who was unable to attend the meeting due to the extension of his travel itinerary overseas.
68 Further, the minutes record that:
The resolution was proposed and passed unanimously at 1.44pm.
Resolution 2.06/2007: High Risk Crime Groups – Proposed Extension to 30 June 2008
The Board:
resolved, in the terms of the instrument Australian Crime Commission Special Investigation Authorisation and Determination (High Risk Crime Groups) 2005 to authorise the ACC to continue to undertake a Special Investigation until 30 June 2008 by which time it will be further reviewed.
Specific Factual Background to the fourth determination
69 As also appears from the evidence and the agreed facts, Commissioner Keelty also expected to be travelling overseas at the time of the Board meeting on 25 June 2008 and, therefore, did not expect to be able to attend and chair that Board meeting. On 3 June 2008, Commissioner Keelty signed a letter addressed to Tony Negus, Deputy Commissioner Operations, AFP Headquarters, Canberra, which stated as follows:
PERFORMING THE FUNCTIONS OF COMMISSIONER
I require you to perform the functions of Commissioner from 3.00pm on Saturday 14 June until 9.00am Friday 27 June 2008. During this period I will [be] 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.
70 It is also an agreed fact that Mr Keelty did not attend and chair the Board meeting held on 25 June 2008. Instead, Deputy Commissioner Negus attended and chaired that meeting in his capacity as the “Acting Commissioner” of the Australian Federal Police. As with Mr Lawler, Deputy Commissioner Negus did this relying upon the letter of 3 June 2008 (above) from Commissioner Keelty and s 19 of the AFP Act.
71 At the Board meeting on 25 June 2008, the Board had before it, as Agenda Item 8 (a): High Risk Crime Groups Special Investigation – extension, under the heading “Draft Resolution”, the following:
Draft Resolution
The Board:
…
resolved, in the terms of the draft instrument Australian Crime Commission Special Investigation Authorisation and Determination (High Risk Crime Groups) 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 investigation until 30 June 2009 by which time it will be further reviewed.
72 The instrument referred to in this agenda item was attached to the agenda (“the fourth draft instrument”). It was a one-page document entitled “Australian Crime Commission Special Investigation Authorisation and Determination (High Risk Crime Groups) Amendment No. 1 of 2008”. The first section of the fourth draft instrument was in identical form to that of the first, second and third draft instruments. As with those draft instruments, the time and dates in that section were left blank and it was not signed where indicated by the Chair (see [30], [52] and [64] respectively above).
73 Clause 3 of the fourth draft instrument was similar in its terms to clause three of the second and third draft instruments (see [53] and [65] respectively above). It stated as follows:
Amendment of Australian Crime Commission Special Investigation Authorisation and Determination (High Risk Crime Groups) 2005
The Australian Crime Commission Special Investigation Authorisation and Determination (High Risk Crime Groups) 2005 made by the ACC Board on 27 July 2005 is further amended as follows-
Paragraph 4(a) and 4(b) delete 30 June 2008 and insert 30 June 2009.
74 The minutes of the Board meeting held on 25 June 2008, record (so far as they are not redacted) that the participants in Melbourne included: “Acting Commissioner Tony Negus, Australian Federal Police [Chair]”. Item 1 of the minutes, under the heading “Opening of meeting by Chair”, records that:
The Chair opened the meeting at 1.08pm. He welcomed the participants to the second Board meeting of the year and advised that Commissioner Keelty was overseas.
75 Further, the minutes record that:
Item 8a: High Risk Crime Groups Special Investigation – extension
The resolution was unanimously supported at 2.12pm.
Resolution 2.07/2008: High Risk Crime Groups – extension
The Board:
…
d. resolved, in the terms of the instrument Australian Crime Commission Special Investigation Authorisation and Determination (High Risk Crime Groups) 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 investigation until 30 June 2009 by which time it will be further reviewed.
76 In relation to this ground of challenge, Ms Maharaj sought and obtained leave to re-open her case to tender an affidavit of Assistant Commissioner Jevtovic. Then, at the request of Mr Abbott, she submitted Assistant Commissioner Jevtovic for cross-examination. This evidence was directed to the question: what, if any, determination had Commissioner Keelty made under s 19(4) of the AFP Act as to the order of seniority of members of the Australian Federal Police? In paragraph 3 of his affidavit, Assistant Commissioner Jevtovic deposed that:
The SES records show that:
a. Since at least May 2007 the most senior member in the AFP was the Commissioner, and the next most senior member was the Deputy Commissioner. Deputy Commissioners of the AFP are appointed by the Governor General of Australia pursuant to section 17(1) of the Australian Federal Police Act 1979 (Cth). Aside from the Commissioner, the Deputy Commissioner role is the only other commissioned role requiring appointment by the Governor General;
b. Since 29 May 2007 there have been two Deputy Commissioner, holding positions of equal seniority;
c. Between 8 July 2004 and 28 February 2009 Federal Agent John Lawler was a member of the AFP holding the position of Deputy Commissioner; and
d. Federal Agent Anthony Negus (also known as Tony Negus) has been, and is currently, a member of the AFP holding the position of Deputy Commissioner since 19 October 2007.
77 In cross-examination, Assistant Commissioner Jevtovic gave evidence to the following effect:
1. He was aware of two written determinations of seniority under s 19(4) of the AFP Act. One, dated 18 March 2007, stated as follows:
I, Michael Joseph Keelty, Commissioner of the Australian Federal Police, under section 19, subsection 4 of the Australian Federal Police Act 1979, the Act, hereby determine the order of seniority of members for the purpose of the performing the functions of Commissioner and Deputy Commissioner of Police in accordance with subsection 19(1) of the Act, to be as follows:
(1) John Lawler;
(2) Peter Drennan;
(3) Tony Negus;
(4) Mark Ney;
(5) Paul Jevtovic.
2. The other, dated 21 January 2009, stated that:
I, Michael Joseph Keelty, Commissioner of the Australian Federal Police, under section 19, subsection 4 of the Australian Federal Police Act 1979, the Act, hereby determine the order of seniority of members for the purpose of the performing the functions of Commissioner and Deputy Commissioner of Police in accordance with subsection 19(1) of the Act, to be as follows:
(1) Tony Negus;
(2) Mike Phelan;
(3) Andrew Colvin;
(4) Peter Drennan;
(5) Mandy Newton.
3. He had caused searches to be made and his staff had not been able to locate any similar written determination of seniority under s 19(4) of the AFP Act, as at June 2008.
4. As at June 2008, the order of seniority structurally within the AFP was that there were two Deputy Commissioners holding substantive positions, namely Deputy Commissioner Lawler and Deputy Commissioner Negus. Of those two persons, he did not know who was available under s 19(1) of the AFP Act.
5. Otherwise, he was aware that the Commissioner had, from time to time, determined seniority under 19(4) of the AFP Act without reducing those determinations to writing. However, he was not aware of the details of the determinations he had made and they could only be obtained from the Commissioner.
Specific Legislative Provisions
78 This ground of challenge raises for consideration the provisions of ss 7B and 7E of the Act. The latter is set out at [6] above. The former provides that:
(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 Customs;
(d) the Chairperson of the Australian Securities and Investments Commission;
(e) the DirectorGeneral 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.
79 A number of provisions of the AFP Act and the Acts Interpretation Act 1901 (Cth) are also raised by this ground of challenge. The provisions of the AFP Act at issue are ss 18 and 19, the relevant parts of which are as follows:
18 Acting Commissioner and Deputy Commissioner during vacancy
(1) At any time when the office of Commissioner or an office of Deputy Commissioner is or is expected to be vacant (whether or not the office has previously been filled), the Minister may appoint a person to act as Commissioner or as a Deputy Commissioner, as the case may be, until the filling of the vacancy, but a person so appointed shall not continue so to act for more than 12 months.
(2) While a person is acting as Commissioner or as a Deputy Commissioner under subsection (1), he or she 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 of the Deputy Commissioner, as the case may be.
…
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.
…
(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.
80 The provision of the Acts Interpretation Act 1901 (Cth) at issue is s 20, as follows:
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.
81 Finally, the Commission called in aid to answer this ground of challenge, the provisions of s 16 of the Act as follows:
16 Limitation on challenge to Board determination
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 AttorneyGeneral of the Commonwealth or the AttorneyGeneral 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.
Contentions
82 This ground of challenge emerged as the main challenge Z made to any of the determinations. Because that is so, I will set out a more comprehensive summary of the submissions of counsel. However, as this ground of challenge has since been determined by the Full Court’s decision in GGFC, I do not propose to address those of these submissions that were not specifically dealt with in GGFC, eg the operation of s 16 of the Act.
83 Mr Abbott’s primary submission was that since neither Commissioner Keelty, nor an eligible Commonwealth Board member chaired the Board meetings on 14 June 2007 and 25 June 2008, those meetings were not conducted in accordance with the provisions of the Act, specifically s 7E. It followed, so he submitted, that the resolutions of those meetings to make the third and fourth determinations, thereby extending the period of operation of the special investigation, were invalid and in breach of the Act. He submitted that since the Act conferred extensive coercive powers on the Commission and the Board, which intruded in a significant way on the liberty and privileges of individuals, the Act should be construed strictly in accordance with its terms. In making this submission, he relied heavily on the decision of Flick J in A B Pty Limited v Australian Crime Commission [2009] FCA 119 (“AB”) at [19] to the effect that a provision of the Act: “…must be construed according to its terms such that no greater power is in fact exercised than the words employed by the legislature permit”.
84 In response, Ms Maharaj submitted that in chairing those meetings of the Board, Deputy Commissioner Lawler and Deputy Commissioner Negus were both deemed to be the Commissioner of the Australian Federal Police under the provisions of s 19 of the AFP Act, having been nominated by Commissioner Keelty under the terms of the letters dated 24 May 2007 and 3 June 2008 respectively. Ms Maharaj submitted that by signing those letters, Commissioner Keelty necessarily determined that Deputy Commissioner Lawler and Deputy Commissioner Negus were, at the time of each letter, the “next most senior member who is available” under s 19(1) of the AFP Act. Further, Ms Maharaj submitted that if the Court held that Commissioner Keelty had not made a determination under s 19(4) that Deputy Commissioner Lawler and Deputy Commissioner Negus were the next most senior members available, s 19(3) prevented Z from calling into question anything done by them, on the ground that the occasion for their so acting had not arisen. Ms Maharaj submitted that s 19 of the AFP Act can be linked with s 7E of the Act because nowhere in the AFP Act is it specified that the provisions of s 19 of the AFP Act are limited in their application to that Act: eg by use of the words “under this Act”. Ms Maharaj submitted that her construction of s 19 of the AFP Act was consistent with, what she submitted, was the purpose of the Act that each organisation referred to in s 7B(2) of the Act, always had a representative at any Board meetings. This, she submitted, ensured that these important law enforcement agencies would be able to participate in all of the Board meetings, notwithstanding that their senior officer was not available to attend, and would therefore be involved in the determination of national security, intelligence and criminal investigation priorities, and in any associated budgetary and resource allocation issues. On the other hand, she submitted, if the Parliament wished to exclude all but the most senior office holders of these agencies from participation in the Board meetings, the Act would have made this clear. In response to the suggestion that s 7E(b) of the Act would have no work to do on her construction, Ms Maharaj submitted that it would apply where neither the Commissioner, nor the person acting in that role under s 19 of the AFP Act, could attend the Board meetings. Finally, she submitted, that on her construction, there was no real possibility of junior persons from these agencies attending Board meetings.
85 Ms Maharaj also sought to rely upon s 20 of the Acts Interpretation Act 1901 (Cth). She submitted that the references to the “Commissioner of the Australian Federal Police” in s 7B(2)(a) and 7B(3) of the Act, were references to a person holding that office in “general terms”, such that any person who is, for the time being, performing the duties for that office, is deemed to be included. Thus, she submitted, s 20 applied to include Deputy Commissioner Lawler and Deputy Commissioner Negus within those references. She submitted the purpose of s 20 was to allow a person who is acting in a particular office or position to perform all the duties of that office or position.
86 In the alternative to these submissions, Ms Maharaj relied upon s 16 of the Act to submit that all of the attacks on the third and fourth determinations (even if made out) did not constitute jurisdictional errors, in the sense that none of them constituted “inviolable restraints” on the validity of the administrative action in question and they were therefore protected by the provisions of s 16 of the Act.
87 In response to these submissions, Mr Abbott submitted that the person appointed as the Commissioner of the Australian Federal Police holds an office of profit under the Crown and whenever the words “the Commissioner” appear in the AFP Act, they are to be understood as a reference to that office and to the person holding that office: eg in s 18(1) of the AFP Act. He submitted that s 7B of the Act establishes the Board and identifies, with precision, its membership. He pointed out that the Board members are the most senior officers of the various bodies represented on the Board. This, he submitted, indicated that Parliament intended that the Board was only to be constituted by the most senior officers of those bodies. Further, he submitted, that other than the specific power of delegation held by the CEO of the Commission under s 59A of the Act, the Act does not allow any of the members of the Board to delegate their powers, functions or duties to others, either generally or at all.
88 Mr Abbott submitted that a person, who is appointed to discharge the powers and functions of the Commissioner under s 19 of the AFP Act, does not occupy the office of Commissioner. He contrasted the provisions of s 19 of the AFP Act with the provisions of s 18 of that Act, which provides for the appointment of an acting Commissioner. He submitted that upon its proper construction, s 19 of the AFP Act is purely facultative and it is concerned with the exercise of the powers, functions and duties conferred by that Act on the Commissioner of the Australian Federal Police and not with the delegation of powers, functions or duties conferred on the Commissioner under other legislation. Mr Abbott submitted that s 19 of the AFP Act sits with the more general power of delegation in s 69C of that Act, which requires a delegation of powers, functions or duties under that Act to be in writing. Further, he submitted it would be remarkable, and contrary to the maxim of statutory interpretation “generalia specialibus non derogant” if the specific provisions of s 7B and 7E of the Act could be circumvented by the more general provisions contained in s 19 of the AFP Act. Finally, Mr Abbott submitted that there was no evidence that Commissioner Keelty had determined the order of seniority of members in accordance with s 19(4) of the AFP Act.
89 As to s 20 of the Acts Interpretation Act 1901 (Cth), Mr Abbott submitted that section was concerned with legislation referring to particular offices or positions in “general terms”, not with legislation referring to specific offices or positions that could only be held at any one time by a single identifiable person. Thus, he submitted, s 20 might apply, for example, to legislation referring to a director, or an officer of a corporation, or even to an officer of the Australian Federal Police, but it did not apply to a reference to the specific position of the Commissioner of the Australian Federal Police, or the Chair of the Commission. In any event, he submitted, s 20 only applied “unless the contrary intention [appeared]” and such a contrary intention was contained in the specific provisions of s 7E of the Act, which required the Chair or an eligible Commonwealth member to preside.
90 In making these submissions, Mr Abbott relied upon the decisions in: Registrar of Aboriginal Corporations v Barker (1997) 81 FCR 53; [1997] FCA 1489; Lim v Secretary, Department of Education, Employment and Workplace Relations (No 2) [2008] FCA 1752; and Gazal Apparel Pty Ltd v Davies (2007) 247 LSJS 391; [2007] SASC 91. Finally, Mr Abbott submitted that the Act draws an important distinction between the position of the Chair of the Board and the role of the Chair, or another person, presiding at a Board meeting, because the Chair of the Board has a large number of other functions under the Act, including those under ss 7D, 7F, 7G, 7J, 9(2) to (4), 9(6) and 9(8), 46A(2B), 55A, 55B, 55C, 59 and 61. This, he submitted, demonstrated that a Deputy Commissioner of Police appointed under s 19 of the AFP Act could not take on the Commissioner’s role as Chair of the Board and thus, discharge all these functions, anymore than he could discharge the function of presiding at a meeting of the Board.
91 In response to the Commission’s reliance upon s 16 of the Act, Mr Abbott submitted that section only purports to limit the circumstances in which acts or things done by the Commission because of a determination may be challenged, reviewed, quashed or called into question. He submitted the section did not limit the circumstances in which an applicant may complain that there has been no valid determination at all because of the Board’s failure to comply with the pre-conditions in the Act for the existence of such a determination. Nor does it prevent an applicant from challenging a summons issued in breach of the provisions of the Act, such as s 28, which must be strictly complied with to enliven the power of the examiner to issue such a summons.
Consideration
92 Insofar as the Board meeting of 25 June 2008 is concerned, this issue is almost identical in factual terms to those considered by the Full Court in GGFC. Both involve the same meeting (see [68] to [70] above and GGFC at [6]) and the same letter from Commissioner Keelty to Mr Negus (see [68] above and GGFC at [11]). The only slight factual difference is that, whereas in GGFC the Full Court had to draw an inference that Mr Negus was the next most senior member who was available (see GGFC at [11]), in this matter I have the evidence of Assistant Commissioner Jevtovic (see [75] to [76] above) which, I consider, establishes that as a fact, and I so find. Furthermore, the relevant legislative provisions that have been raised in both matters are the same (compare [77] to [80] above with GGFC at [8] to [15]) and the contentions of counsel based thereon are substantively the same (compare [82] to [90] above with GGFC at [8] to [15]).
93 As to the Board meeting of 14 June 2007, the facts relating to that meeting are very similar to those of the 25 June 2008 meeting. The critical factual issues in both, which are not in dispute, were that Commissioner Keelty did not attend that meeting and he appointed Mr Lawler to attend in his place. As with Mr Negus, I find, based on the evidence of Assistant Commissioner Jevtovic, that Mr Lawler was the next most senior member available at the time of this meeting. Finally, since the same relevant legislative provisions are involved and the contentions of counsel in this matter were directed equally to both meetings, it follows that the legal issues raised in relation to the 14 June 2007 meeting are relevantly identical to those determined by the Full Court in GGFC in relation to the 25 June 2008 meeting.
94 In GGFC, the Full Court rejected the appellant’s contention that Commissioner Keelty’s non-attendance at the Board meeting on 25 June 2008 and the attendance of Mr Negus in his place, meant that this meeting was not properly constituted thereby vitiating the determinations that the Board made at that meeting: see GGFC at [9] to [16]. Since this ruling was a part of the ratio decidendi in that appeal, I consider I am bound by it. As to the Board meeting of 14 June 2007, since the factual and legal issues involved there are relevantly the same as for the 25 June meeting, I consider I am also bound to reach the same conclusion about that meeting. For these reasons, I reject these grounds of challenge to the third and fourth determinations.
(4D) The third determination is invalid because at its meeting on 14 June 2007, the Board did not consider or pass any resolution in accordance with the third determination, or the first determination, as amended by the second, and the proposed third, determination.
95 The relevant part of the resolutions of the Board meeting on 14 June 2007 is set out at [67] above. Unlike the other amending resolutions which referred to the terms of the draft instrument attached to the agenda for the meeting and extended the period of operation of the special investigation by one year (see the second resolution at [54] above and the fourth resolution at [74] above), this resolution refers to the first determination and authorises the Commission to continue to undertake the special investigation until 30 June 2008. The reason why this is said to give rise to the invalidity of the third determination is adequately expressed in the statement of the challenge above. As an aside, I would observe that in this instance, Z appears to be criticising the Board for doing what it was criticised for not doing in ground of challenge two above (see at [56]), ie not referring to the first determination. It should also be noted that the Board’s resolution in this instance is to much the same effect as the resolution that was considered to be valid in X: see X at [59] above.
96 Nonetheless, I consider the precise wording of the Board’s resolution is immaterial on this issue because, as with the first ground of challenge and the second ground of challenge, I consider the correct approach is to construe the relevant provisions of the Act that specify what is required of the Board to make a valid resolution and then look to see whether the Board complied with those requirements. When one undertakes this task, I consider it becomes apparent that the only relevant requirement of the Act, in the circumstances where the Board is amending the period of operation of a special investigation in a determination, is that the amending determination must be in writing: (see the discussion at [45] to [46] and [58] to [60] above). Then, when one takes into account the terms of the third draft instrument and the resolution of the Board, I consider that it is clear that the third determination meets this sole requirement for a valid determination. I note that this is similar to the approach taken by Jagot J (albeit in a different context) in SS at [35] – I respectfully agree with her Honour. I therefore reject this ground of challenge to the third determination.
(5D) All of the determinations are invalid because the Board failed, in accordance with s 25D of the Acts Interpretation Act 1901 (Cth) to set out in any of the instruments of determination, the reasons for the decision constituting the determinations; including the findings on material questions of fact and the evidence, or other material, upon which those findings were based.
Specific Factual Background
97 This ground of challenge is directed to the four draft instruments which became the determinations, the relevant parts of which are set out above and there is no need for the purposes of this ground of challenge to reiterate them here.
Specific Legislative Provisions
98 This ground of challenge raises for consideration the provisions of s 7C(1)(d) which are set out at [4] above. It also raises for consideration s 25D of the Acts Interpretation Act 1901 (Cth) which provides as follows:
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.
Contentions and consideration
99 The particulars of this ground of challenge are sufficiently set out in the statement of the ground of challenge above. In essence, Mr Abbott contends that although the words “reasons” or “grounds” do not appear in s 7C(1)(d) of the Act, the obligation to record reasons or grounds is to be implied by the use of the expression “determine in writing” in this section. In support of his submissions, Mr Abbot referred me to Freeman v Medical Practitioners Board of Victoria (2000) 17 VAR 106; [2000] VSC 547 at [24] to [27].
100 Mr Abbott’s contention in this matter appears to be identical to that raised by the applicant (for whom I note Mr Abbott also acted as counsel) in SS: see at [67]. Jagot J disposed of this contention in SS as follows (at [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.
101 In addition to the matters identified by Jagot J (above) (with which I respectfully agree), I consider the context in which the Board makes a determination under s 7C(1)(d) provides further support for the conclusion that it has no obligation to give “reasons” or “grounds” for any determination it makes. The Board, when making a determination, is not operating as a tribunal, body or person making a decision which is subject to review or appeal. In my view, that is the type of situation that s 25D of the Acts Interpretation Act 1901 is addressing. In that situation, the primary purpose of having reasons is to facilitate any review or appeal: see Pettitt v Dunkley (1971) 1 NSWLR 376 (“Pettitt”) at 381 to 382, 386 and 388. Reasons may also serve to provide information to the parties as to why the decision was reached, but again, to facilitate any review or appeal: see Pettitt at 388, Ansett Transport Industries (Operations) Pty Ltd v Wraith (1983) 48 ALR 500 at 507 and Dodds v Comcare Australia (1993) 31 ALD 690 at 691. None of these considerations applies to the Board. Subject to some very limited exceptions, which are not relevant for present purposes, the Board’s decision is not subject to review or appeal in any way. So much is clear from s 16 of the Act: set out at [80] above. Furthermore, there are no parties, as such, before the Board and the confidentiality provisions of the Act, such as s 51, tell against any suggestion the Board should provide any information about why it decided to make a particular determination. Instead, the Board is making a determination within a confined constitutional, institutional and statutory environment (see the discussion at [40] to [44] above) which, in turn, provides the authority to the officers of the Commission to exercise the coercive powers set out in the Act: see the discussion at [4] above. For these reasons, I reject this ground of challenge to the four determinations.
(6D) All of the determinations are invalid because the purposes of the investigation, as set out in paragraph 8 of the first determination, exceeded the powers of the Board.
Specific Factual Background
102 This ground of challenge is directed to clause 8 of the first determination which is as follows:
The purpose of the investigation is:
(a) to collect and analyse criminal information and intelligence relating to the federally relevant criminal activities, to disseminate that information and intelligence in accordance with the Act and to report to the Board; and
(b) to identify and apprehend persons involved in the federally relevant criminal activities, to collect evidence about those activities and to reduce the incidence and effect of those activities; and
(c) to make appropriate recommendations to the Board about reform of:
(i) the law relating to relevant offences ; and
(ii) relevant administrative practices; and
(iii) the administration of the courts in relation to trials of relevant offences.
Specific Legislative Provisions
103 This ground of challenge raises, in part, the provisions of ss 7A and 19 of the Act, which provide as follows:
Section 7A Functions of the ACC
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.
Section 19 Incidental powers of ACC
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.
Contentions
104 In support of this ground of challenge, Mr Abbott submitted that the first determination related to a special investigation and the Act distinguishes between an “investigation” and an “intelligence operation”. He referred to the definition of each of these expressions and submitted that since clause 8(a) of the first determination refers to matters that fall within the definition of “intelligence operation”, it did not identify something that was a proper purpose for an “investigation”. As to clause 8(b) of the first determination, Mr Abbott submitted that the apprehension of perpetrators is the result of an investigation and not a part of an investigation. This, he submitted, fell outside the functions of the Commission as prescribed in s 7A of the Act. Further, he submitted, that s 12(1) of the Act expressly requires the Commission, where it obtains evidence of an offence against a law of the Commonwealth, or a State or Territory, to assemble that evidence and give it to an Attorney-General, a law enforcement agency, or a prosecution authority. This suggested, so he submitted, that the Commission’s role was limited to the investigation stage and did not include the apprehension of perpetrators. Finally, as to clause 8(c) of the first determination, he submitted that the making of recommendations to the Board about the reform of laws, administrative practices and the administration of courts, as that clause required, fell outside the ambit of the functions of the Commission as prescribed in s 7A of the Act. Furthermore, that purpose was not necessary for, or reasonably incidental to, the performance of any of the functions of the Commission under s 19 of the Act.
Consideration
105 So far as this ground of challenge relates to clause 8(a) of the first determination, it is similar to that raised by the applicant in SS: see at [69] and in GG: see [86]. Jagot J disposed of this contention in SS as follows (at [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.
106 Besanko J came to a similar conclusion in GG using a similar process of reasoning. His Honour said (at [88]):
… there is no definition of “investigation” in the Act and there is no reason to think that, reading the Act as a whole, some of the acts comprising an operation may not also form part of an investigation. There may be questions of degree involved, but the point is that there is no reason to think that the two functions are mutually exclusive. …
107 In addition, similarly to Jagot J in SS, Besanko J relied upon the incidental powers provisions of s 19: see GG at [88].
108 Having independently considered the submissions in this case, and the reasoning of their Honours in SS and GG, I respectfully agree with the conclusion they have reached that the functions of undertaking an intelligence operation and an investigation under the Act overlap and are not mutually exclusive. On these bases, I reject this part of this ground of challenge, so far as it relates to clause 8(a) of the first determination being beyond the functions of the Commission.
109 As to the challenge to clause 8(b) of the first determination, I consider that the apprehension of perpetrators is a thing that is “necessary to be done for or in connection with, or reasonably incidental to, the performance of” the Commission’s functions under s 7A and therefore falls within the terms of s 19 of the Act. In particular, I consider it is reasonably incidental to its function of undertaking operations and conducting investigations. Conversely, I do not consider that the express requirements of s 12(1) of the Act that evidence gathered during an operation or investigation, which relates to certain offences, has to be provided to the relevant Federal, State or Territory authorities, supports the conclusion that the functions of the Commission do not extend to apprehending the perpetrators of those same offences. Furthermore, as Ms Maharaj points out, the Act empowers the Board to determine the class or classes of persons to participate in an operation or investigation and to establish task forces: see ss 7C(1)(e) and (f). It is therefore clearly intended that members of the Federal and State police forces will be deployed in Commission operations and investigations. These police officers will obviously bring with them the powers of arrest they have under the relevant legislation in their home jurisdiction. I note that Besanko J made similar observations in GG (at [91]) and I respectfully agree with those observations. For these reasons I reject this ground of challenge so far as it relates to clause 8(b) of the first determination being beyond the functions of the Commission.
110 Finally, I consider the challenge to clause 8(c) of the first determination is answered by the provisions of s 12(3) of the Act. That section relevantly provides:
(3) Where, as a result of the performance of any of the ACC’s functions, the Board considers that a recommendation should be made to the Commonwealth Minister or to the appropriate Minister of the Crown of a participating State, being a recommendation:
(a) for reform of the law relating to relevant offences, including:
[various offences are described]
(b) for reform of administrative practices; or
(c) for reform of administration of the courts in relation to trials of relevant offences;
the Board may make the recommendation to the Commonwealth Minister, or to that Minister of the Crown of that State, as the case may be.
111 While this additional function is primarily given to the Board, for it to operate effectively, it is obvious that it must be able to rely upon the Commission to alert it to any matters that come to the attention of the officers of the Commission during the course of an investigation, that may be the subject of a recommendation for reform of the types identified in s 12(3). It follows, in my view that it is entirely consistent with this function for the Board to request the Commission to report to it on such matters. This is precisely what clause 8(c) does. Viewed in this way, I consider this additional function falls within the provisions of s 7A(g) or, at the very least, it is a thing that is necessary to be done for, or reasonably incidental to, the performance of the Commission’s functions within the extended terms of s 19. I note that Besanko J came to a similar conclusion in GG (at [91]) and I respectfully agree with that conclusion. I therefore reject this ground of challenge so far as it relates to clause 8(c) of the first determination.
112 For these reasons, I reject all these challenges to clause 8 of the first determination.
(7D) All of the determinations are invalid because there is no record, or any other evidence, of the Board complying with the requirements of s 7C(1)(d) and s 7C(3) of the Act, to consider whether ordinary methods of police investigation were likely to be effective.
113 This ground of challenge can be disposed of briefly. In his oral submissions, Mr Abbott conceded that the Full Court had rejected a similar, if not identical, contention in P (see at [22]). There the Full Court said (at [22]):
The second misconception is that any written determination pursuant to s 7C(3) must refer to the Board’s consideration of the effectiveness of ordinary police methods. Section 7C(3) requires only that such determination be in writing. Section 7C(4) prescribes certain matters which must be included in it, but they do not include the Board’s consideration of ordinary police methods. The appellant argues that there would be no point in requiring consideration of the matter unless the fact of such consideration was recorded in the written determination. We see no merit in that argument.
Since this was a part of the ratio decidendi in P, as a single Judge of this Court, I am bound to follow it. Moreover, I consider, with respect, the Full Court’s reasoning is plainly correct. I therefore reject this ground of challenge to all of the determinations.
(8D) All of the determinations are invalid because the Board exceeded its powers when it made the first determination, by impermissibly delegating to persons other than the Board, the power to identify the class or classes of persons who were authorised to participate in the special investigation.
Specific Factual Background
114 This ground of challenge is directed to clause 6 of the first determination, which is as follows: “Pursuant to paragraph 7C (1) (e) of the Act, the classes of persons to participate in the investigation are those mentioned in Schedule 2”.
115 Schedule 2 was as follows:
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 Multicultural and Indigenous Affairs;
(v) the New South Wales Crime Commission;
(vi) 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.
Specific Legislative provision
116 Section 7C(1)(e) of the Act, mentioned above, provides: “to determine, in writing, the class or classes of persons to participate in such an operation or investigation”.
Contentions
117 Mr Abbott submitted that items 2(b) and 3(b) of Schedule 2 exceeded the powers of the Board under s 7C(1)(e) of the Act in that they impermissibly purported to delegate to persons other than the Board the power to identify persons authorised to participate in the special investigation mentioned in Schedule 1. However, in oral submissions, Mr Abbott conceded that Mansfield J had rejected a similar contention in D v Australian Crime Commission (2006) 152 FCR 497; [2006] FCA 660 (“D”) and he could not submit that his Honour was plainly or clearly wrong. In D, Mansfield J rejected this contention (which was put at [52]) in the following terms (at [58]):
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. … The determination of the Board specified the class or classes of persons in a way which required that designation to be done by the head of the nominated agency and to be done formally, that is in writing. It need not have done so. … The refinement of that class by requiring the head of that agency to authorise in writing the particular members of that agency to participate cannot be seen as the Board not fulfilling a responsibility imposed by s 7C(1)(e) in any way which would otherwise serve the purposes of the ACC Act.
118 This reasoning of Mansfield J in D was followed by Jagot J in SS (at [53]) and by Besanko J in GG (at [103]). Quite apart from the concession made by Mr Abbott, having independently considered the submissions in this case, I respectfully agree with the reasoning of all their Honours in these three decisions. Accordingly, I reject this ground of challenge to the four determinations.
(9D) All of the determinations are invalid because the Board exceeded its powers when it made the first determination, by impermissibly and prospectively delegating its obligation to identify, pursuant to s 7C(4)(a) of the Act, the circumstances, or allegations, constituting the federally relevant criminal activity.
119 This final ground of challenge to the determinations is directed to paragraph 3(aa)(v) of Schedule 1 to the first determination which provides: “such other incidental offences the head of this ACC special investigation 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) to (z)”. In essence, Mr Abbott submitted that this paragraph purported to impermissibly and prospectively delegate to the head of the special investigation the Board’s obligations under s 7C(4)(a) of the Act, to identify the circumstances or allegations constituting the federally relevant criminal activity. Section 7C(4)(a) of the Act provides that:
(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
…
120 Section 4(2) of the Act is also relevant to this ground of challenge. It 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.
121 Again, this contention appears to be similar, if not identical, to one of the contentions made in SS (see at [80]) and in GG (see at [111]). In SS, Jagot J disposed of this contention in the following terms (at [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.
122 In GG, Besanko J disposed of it as follows (at [114]):
There are two answers to the applicant’s submission. First, the Board’s obligation is to determine and describe the general nature of the circumstances or allegations constituting the federally relevant criminal activity (see s 7C(4)(a)). Secondly, the power in item 3(q)(xii) is very limited. The offences must be incidental and directly or indirectly connected with, or may be part of, a course of activity involving the commission of any offences referred to in paragraphs (a) to (p) of paragraph 3 of Schedule 3.
123 Having independently considered the submissions in this case, I respectfully agree with the reasoning of Jagot J in SS and Besanko J in GG on this matter. Accordingly, I reject this ground of challenge to the four determinations.
124 Having rejected all of the nine grounds of challenge against the Board’s determinations, I now turn to consider the five grounds of challenge against the issue of the summons.
(1S) The determinations are invalid and therefore the summons upon which they are based is invalid.
125 Since I have concluded that none of the determinations is invalid, it necessarily follows that I reject this ground of challenge to the summons.
(2S) The summons was not accompanied by a proper copy of any of the determinations, as required by s 28(2) of the Act.
Specific Factual Background
126 It is an agreed fact that the summons that was served on Z was accompanied by copies of what purported to be the determinations as annexure A to the summons. Each of these copies of the determinations differs from the draft instrument that became the actual determination in writing because the section appearing under the heading: “Australian Crime Commission Special Investigation Authorisation and Determination (High Risk Crime Groups)” in each was completed with the time and dates that the determination was made and signed by the person who presided at the meeting. For example, the uncompleted section of the first draft instrument is set out (at [30]) above and the completed section of that instrument stated as follows:
First determination
The Board of the Australian Crime Commission has made this instrument under section 7C of the Australian Crime Commission Act 2002 by resolution at 2.43pm on 27 July 2005 (signature) M J Keelty Chair of the Board of the Australian Crime Commission 27 July 2005.
[handwritten parts where underlining added]
Specific Legislative Provisions
127 Section 28(2) of the Act relevantly provides:
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.
Contentions
128 Mr Abbott submitted that, in each case, the draft instrument attached to the agenda before the Board, became the Board’s determination in writing. This, he submitted, was the effect of the decision of Mansfield J in CC (at [33]) where the Board followed a similar procedure. I should interpolate that I have reached a similar conclusion in relation to the first ground of challenge to the determinations: see at [47] above. It followed, so Mr Abbott submitted, that this was the document, a copy of which, s 28(2) required should be attached to the summons. Instead of this document, he submitted that the draft uncompleted instruments, as described above, were attached to the summons. Accordingly, he submitted that since these documents were not copies of the actual determinations as made by the Board, they did not comply with the requirement of s 28(2) of the Act.
Consideration
129 In essence, Z’s position is that s 28(2) requires the summons to be accompanied by an exact copy of the document constituting the Board’s determination in writing under s 7C(1)(d). In my view, this contention cannot be accepted. I do not consider that s 28(2) is concerned with the form of the document attached to the summons. Instead, I consider s 28(2) has a much more important and substantive purpose. That purpose is to provide the recipient of the summons with a document that demonstrates that the Board has determined that the investigation is a special investigation or operation. This determination is fundamental because, by it, the Board allows the Commission to exercise the significant coercive powers under the Act: see the discussion at [4] and [40] to [44] above. It follows that the critical question is whether the documents attached to the summons in this case conveyed that information to Z.
130 In my view they did. The only difference between the documents constituting the Board’s actual determinations in writing and the documents attached to the summons was the addition of the three pieces of quite innocuous information described above (at [125]): the time and date upon which the determinations were made and the signature of the Chair of the Board at the time the determinations were made. This additional information did not contradict, qualify, or lead to any confusion about any of the information contained in the remainder of each of the documents. Apart from this additional information, each document set out verbatim what was in the actual determination. Moreover, each document conveyed to the reader a great deal of accurate and highly relevant information about the special investigation, some of which was required by provisions of the Act, eg s 7C(4), and some that was not. In particular, the document relating to the first determination contained the following information:
1. In clause 4: that the Board had authorised the Commission to investigate the matter mentioned in schedule 1 relating to federally relevant criminal activity, acting under ss 7C(1)(c) and 7A(d);
2. In clause 5: that the Board had considered whether ordinary police methods of investigation into the matter mentioned in schedule 1 relating to federally relevant criminal activity were likely to be effective and determined that the investigation mentioned in schedule 1 was to be a special investigation under ss 7C(1)(d) and s 7C (3);
3. The classes of persons who were to participate in the investigation under s 7C(1)(e) were described in clause 6 and schedule 2;
4. In clause 7: that the serious and organised crime to which the instrument applied included offences against a law of the Commonwealth, a law of a State or a law of a Territory, under s 7C(4)(b);
5. The purpose of the investigation was described in some detail in clause 8, as required by s 7C(4)(c); and
6. The general nature of the federally relevant criminal activity was described in schedule 1, as required by s 7C(4)(a).
131 Further, each of the documents relating to the second to fourth determinations clearly conveyed to the reader that the period of the special investigation had been extended to a specified date, ie 30 June in the following year.
132 For these reason, I do not consider the summons was invalid because it failed to comply with s 28(2). Before leaving this issue I should add that I consider Mr Abbott’s reliance upon the decision in CC is misdirected. In CC, Mansfield J was required to decide whether the Board had made a valid determination in writing under ss 7C(1)(d) and (3) of the Act. Here, the question is quite different. It is whether a proper copy of the Board’s determination was attached to the summons under s 28(2) of the Act. For these reasons, I reject this challenge to the validity of the summons.
(3S) The summons did not require Z to give evidence as “a witness” into federally relevant criminal activity, as required by s 28 of the Act.
133 This ground of challenge to the summons is similar, if not identical, to a ground of challenge pursued in both SS (see at [128]) and in GG (see at [31]). Because of the conclusion I have reached (below), I do not consider it is necessary to set out the submissions of counsel in relation to this ground of challenge. The substance of them will appear from the quotes from SS and GG set out below. On this point, it is also appropriate to note that the same senior counsel appeared for the respective parties in SS, GG and this matter and, indeed, in AA1, AA2 and GGFC.
134 Jagot J disposed of this ground in SS in the following terms (at [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].
135 Besanko J disposed of it in GG in the following terms (at [31]):
… There is nothing in the Act which requires a summons to state that the person to whom it is directed is required to give evidence as a witness. It is not clear to me whether, by making this submission, the applicant was suggesting that he could only be required to give evidence as a witness in the sense that he could not be required to give evidence of his own activities or involvement in the activities of others. If he was suggesting that, it is plainly not a proposition supported by the provisions of the Act. The provisions of the Act have the effect of removing the privilege against self-incrimination: s 30(4) and (5) (see A v Boulton (2004) 136 FCR 420).
136 As I have observed a number of times above, having independently considered the submissions in this case, I respectfully agree with the reasoning of Jagot J and Besanko J set out above. I therefore reject this ground of challenge to the validity of the summons.
(4S) The summons did not comply with s 29A(3) of the Act, in that it was not accompanied by a written statement setting out the rights and obligations conferred or imposed by s 29B of the Act on any person who was, or might be, “otherwise given” the summons.
137 This ground of challenge to the summons is also similar, if not identical, to another ground of challenge pursued in both SS (see at [121]) and in GG (see at [34] and [36]). For the same reasons to those given above, I do not propose to set out the submissions of counsel on this ground of challenge.
138 After considering the scheme of ss 29A and 29B of the Act (see SS at [122] to [126]), Jagot J disposed of this ground in SS in the following terms (at [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.
139 Besanko J dealt with this submission by referring to his earlier decision in AA1 at [45] to [48] where he independently reached the same conclusion as did Jagot J in SS.
140 Having myself independently considered the submissions in this case, I respectfully agree with the reasoning of both Jagot J in SS and Besanko J in GG and AA1. I therefore reject this ground of challenge to the summons.
(5S) In the circumstances, Mr Boulton, the examiner, could not have been satisfied that it was reasonable to issue the summons in accordance with s 28(1A) of the Act.
Specific Factual Background
141 In accordance with the requirements of s 28(1A), Mr Boulton signed off on a document which was headed: “Reasons for the issue of a summons pursuant to subsection 28(1) Australian Crime Commission Act 2002”. Immediately below that heading, the following appeared: “Operation/Investigation: …”. The information after the colon has been redacted – presumably it provides the name of the operation/investigation concerned. Then, under the heading “Material”, Mr Boulton set out the material he had regard to in the following terms:
I had regard to the following material for the purposes of being satisfied under subsection 28 (1A) of the Australian Crime Commission Act 2002 (the Act) that it was reasonable in all the circumstances to issue the summons:
(a) A statement of facts and circumstances dated 19 October 2008
(b) Legal submissions dated 17 October 2008.
142 After setting out the purpose of the summons, under the heading “Conclusions”, Mr Boulton stated:
Based upon my consideration of the statement of facts and circumstances and the legal submissions which are referred to above:
1) I was satisfied that the investigation / 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 party to whom it is directed.
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 investigation/operation to which the examination relates, it would prejudice the effectiveness of it 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 Act because if such a notation were not included it would reasonably be expected to prejudice the effectiveness of the investigation/operation and that a failure to do so might otherwise be contrary to the public interest.
7) I was satisfied that it was appropriate also that the notation pursuant to subsection 29A (1) of the Act be in the terms approved by me.
143 A heavily redacted copy of the legal submissions referred to at paragraph (b) of the section headed “Material” above (see at [140] was tendered in evidence before me. Paragraph 16 of those legal submissions relevantly provided that:
A concise summary of the subject matter in respect of which the Board of the ACC has authorised the ACC to undertake a special intelligence operation, or the matters relating to federally relevant criminal activity in respect of which the Board of the ACC has authorised the ACC to undertake a special investigation:
By instrument signed on 27 July 2005, the Board of the Australian Crime Commission authorised the ACC to undertake a Special Investigation relating to federally relevant criminal activity involving two or more persons engaging in criminal activity listed in Schedule 1 of the Authorisation and Determination, in more than one jurisdiction … (emphasis added)
144 Furthermore, the relevant parts of paragraph 17 of those legal submissions stated as follows:
Submissions in support of the proposition that the Examiner should be satisfied that it is reasonable in all the circumstances to issue a summons under subsection 28(1) of the Australian Crime Commission Act, 2002:
I submit that it is reasonable in all the circumstances to issue a summons under subsection 28(1) of the Australian Crime Commission Act 2002. The proposed summons relates to a witness whose evidence is relevant to the special investigation referred to in the statement of facts and circumstances.
I submit that, as is indicated in the statement of facts and circumstances, the investigation is an investigation into federally relevant criminal activity (as defined above) in that it relates to an offence which: … (emphasis added)
145 Finally, it is relevant to record that, as occurred in GG, Mr Boulton did not give evidence.
Relevant Legislative Provision
146 Section 28(1A) of the Act provides as follows:
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.
Contentions
147 This particular challenge to the summons has been significantly affected by the subsequent decision of the Full Court in GGFC. Because of this, it is not necessary to set out all the submissions put by counsel at the hearing before me. They are in substantially the same form as was put to the Full Court in GGFC: see GGFC at [28] to [34].
148 Furthermore, counsel have since filed supplementary written submissions wherein they have refined their submissions to take account of the Full Court’s decision in GGFC. In those supplementary submissions, Mr Abbott submitted that the references in Mr Boulton’s record of reasons to “investigation/operation” (in the heading and in paragraphs (1), (5) and (6) of the “Conclusions” section) show that he did not turn his mind to whether he was issuing the summons pursuant to an investigation or an operation. He submitted that since those two activities are quite different under the Act, this demonstrated that Mr Boulton fundamentally misunderstood the statutory basis upon which he was issuing the summons. He submitted that these errors are of the same type as those that led the Full Court in GGFC to set aside the summons and I should, therefore, do likewise in this matter. Mr Abbott also submitted that Mr Boulton’s reasons were not reasons at all, but merely conclusions expressed in formulaic terms following a standard pro forma format. In these circumstances, in the absence of evidence from Mr Boulton to explain how and why he was proceeding, I should conclude that he could not have been satisfied in accordance with s 28(1A), that it was reasonable in all the circumstances to issue the summons.
149 Ms Maharaj submitted that GGFC was distinguishable because, in this case, Mr Boulton’s failure to delete the word “operation” from the expression “investigation/ operation” merely amounted to an oversight that was forgivable in the circumstances. She submitted this oversight on his part was not of a nature that called for him to give evidence to explain how and why he was proceeding. She also submitted that there was no broader requirement for Mr Boulton to give reasons, relying upon AA and C Inc. She submitted that the record of reasons Mr Boulton did prepare is an administrative document which should not be scrutinised overzealously with an eye attuned to finding error, relying upon the High Court’s decision in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 (“Wu Shan Liang”). Finally, she submitted that, even if Mr Boulton’s record of reasons did not comply with s 28(1A) of the Act, that did not lead to the invalidity of the summons.
The decision in GGFC
150 In GGFC, the Full Court relied upon two matters to conclude that the examiner had fundamentally misunderstood the nature of his task. In summary, they were, first, that his record of reasons contained a number of references to an “operation” when the activity concerned involved a special investigation: see GGFC at [30]. Secondly, in the legal submissions upon which the examiner relied, there was a number of references to the issue of a notice under s 29(1) of the Act, rather than the issue of a summons under s 28(1), which was what the examiner was actually purporting to do: see GGFC at [32]. The Full Court rejected the Commission’s submissions that: these were merely inconsequential slip-ups caused by using standard form documents; and it was apparent from the summons the examiner actually issued that he must have been aware that he was issuing a summons under s 28 in relation to a special investigation: see GGFC at [33].
151 In the end result in GGFC, the Full Court considered that the errors present in the documents were so significant that they could not be forgiven. Instead, it concluded that they bespoke strongly of “a fundamental misunderstanding of the statutory basis” upon which the examiner had issued the summons: see GGFC at [39]. It observed that the function of issuing such a summons under the Act was a serious one with serious consequences and, therefore, the Court should not go behind what was actually said in the documents before it: see GGFC at [37] to [39]. Accordingly, the Full Court declared invalid the summons the examiner had issued to GG.
Consideration
152 To begin with, I do not accept Ms Maharaj’s submission that the less demanding approach, described by the High Court in Wu Shan Liang, in relation to the reasons of administrative bodies such as the Refugee Review Tribunal, should be applied when one is construing the record of reasons of an examiner prepared under s 28(1A) of the Act. Instead, I consider that the extraordinary coercive powers that are being exercised by an examiner under the Act dictate that the record of reasons that he or she prepares should be “carefully construed” to ensure those powers have only been exercised in the circumstances, and for the purposes, that the Legislature intended. I, therefore, respectfully agree with the observations of Flick J in AB at [58] to this effect. Thus, it is most important, in my view, that the examiner’s record of reasons are closely examined to ensure that they disclose, on their face, that the examiner has given careful consideration to the source and nature of the statutory power being exercised, ie that it relates to a special intelligence operation or investigation so determined by the Board and he or she is justified, in all the circumstances, in using the Commission’s coercive powers to pursue that investigation or operation. In my view, this is entirely consistent with the purpose of making a record of reasons as discussed elsewhere in these reasons albeit in a different context: see at [100] above.
153 Nonetheless, even taking this stricter approach to Mr Boulton’s record of reasons, I do not consider that the deficiencies present in this case are of such a nature that I should conclude that Mr Boulton fundamentally misunderstood the source and nature of the statutory power he was exercising. That is so for these reasons. First, in this case, there is no confusion, as there was in GGFC, as to whether Mr Boulton was issuing a notice under s 29, or a summons under s 28. Here, it is clear throughout that he intended to issue a summons under s 28. Secondly, here, unlike in GGFC, Mr Boulton did not anywhere refer to an “operation” solely. Instead, he referred a number of times to the expression “investigation/operation” without deleting the word “operation”. Thirdly, the legal submissions Mr Boulton relied upon in this case specifically and accurately identified, on a number of occasions, the “investigation”, or the “special investigation” that was actually being pursued.
154 In my view, taken together, these matters demonstrate that Mr Boulton clearly understood he was exercising the statutory power under s 28 of the Act to issue a summons to Z as a part of the particular special investigation that the Board had authorised the Commission to undertake. For these reasons, I agree with Ms Maharaj’s submissions that the Full Court decision in GGFC is distinguishable and Mr Boulton’s failure to delete the word “operation” was an oversight that is forgivable in the circumstances. In other words, that oversight was not of such a nature that it indicated Mr Boulton fundamentally misunderstood the statutory power he was exercising. It follows that I do not consider that the contents of Mr Boulton’s record of reasons and the other documents he relied upon, gave rise to a need for him to give evidence to explain how and why he proceeded to issue the summons. Nor do I consider Mr Boulton had any obligation to do any more than he did in making a record of his reasons, specifically either to give reasons (see C Inc at [90] and [96], adopting Barnes v Boulton (2004) 139 FCR 356; [2004] FCA 1219 (“Barnes”) at [29] and AA2 at [181] to [183] per Foster J) or that any failure to do so would result in the invalidity of the summons (see Barnes at [28], Project Blue Sky at [91] and SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 294; [2005] HCA 24 at [44].
155 Finally, it is worth noting that the deficiency in this matter is similar to the deficiency that occurred in AB, ie the reasons referred to an “investigation/operation” without specifying which it was (see AB at [54]). Flick J ultimately concluded that this deficiency was not sufficient for him to hold that the summons in that case should be held to be invalid: see at [59]. See also the observations in C Inc at [89] and SS at [97] to the effect that not all such deficiencies will lead to invalidity.
156 For these reasons, I reject this ground of challenge to the validity of the summons.
CONCLUSION
157 For all these reasons, I consider Z has failed in all of his nine challenges to the determinations and all of his five challenges to the summons. It follows that Z’s amended application must be dismissed. I will make orders accordingly and hear the parties on the question of costs.
I certify that the preceding one hundred and fifty-seven (157) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves. |
Associate:
