FEDERAL COURT OF AUSTRALIA

XX v Australian Crime Commission [2014] FCA 177

THE COURT ORDERS THAT:

1.    Paragraph 2 of the applicant’s interlocutory application dated 3 September 2014 is adjourned to a date to be fixed.

2.    The respondents must provide the particulars sought in paragraph 2 of the letter of the applicant’s solicitors dated 27 August 2014 as to “all Australia Police services” and “the Australian Customs and Border Protection Service”.

3.    Subject to order 2 above, paragraph 3 of the applicant’s interlocutory application dated 3 September 2014 is dismissed.

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

REASONS FOR JUDGMENT

introduction

1    The applicant in this proceeding has issued an interlocutory application dated 3 September 2014 seeking, relevantly, two orders against the respondents. The first order sought by the applicant is that the Board of the Australian Crime Commission (“the Board”) be joined as a respondent to this proceeding. If that order is made, the Board will be the third respondent to the proceeding. The first respondent is the Australian Crime Commission, and the second respondent is Mr Jeffrey Phillip Anderson. Mr Anderson is an examiner under the Australian Crime Commission Act 2002 (Cth) (“the Act”). The second order sought by the applicant is that the respondents provide further and better particulars with respect to paragraph 24 of their Amended Defence pursuant to r 16.45 of the Federal Court Rules 2011 (Cth) (“the Rules”).

JOINDER OF THE BOARD OF THE AUSTRALIAN CRIME COMMISSION

2    Rule 9.05 of the Rules provides, relevantly, as follows:

9.05    Joinder of parties by Court order

(1)    A party may apply to the Court for an order that a person be joined as a party to the proceeding if the person:

(a)    ought to have been joined as a party to the proceeding; or

(b)    is a person:

(i)    whose cooperation might be required to enforce a judgment; or

(ii)    whose joinder is necessary to ensure that each issue in dispute in the proceeding is able to heard and finally determined; or

(iii)    who should be joined as a party in order to enable determination of a related dispute and, as a result, avoid multiplicity of proceedings.

...

3    The second respondent issued a summons dated 31 March 2014 requiring the applicant to appear before an examiner. One of the documents annexed to the summons was an Authorisation and Determination said to have been made by the Board on 4 September 2013. The instrument is entitled Australian Crime Commission Special Investigation Authorisation and Determination (Highest Risk Criminal Targets No. 2) 2013 (“the Authorisation and Determination”).

4    In the Second Statement of Claim, the applicant states that the proceeding is brought pursuant to s 39B of the Judiciary Act 1903 (Cth) and ss 5 and 6 of the Administrative Decisions (Judicial Review) Act 1977 (Cth), and the applicant claims that the Authorisation and Determination is invalid and that the decision of the Board to make, or the conduct in making, the Authorisation and Determination was beyond power, unlawful, and/or invalid. The applicant also claims that the summons issued by the second respondent is invalid and that the decision of the second respondent to issue, or the conduct of the second respondent in issuing, the summons was beyond power, unlawful, and/or invalid.

5    The applicant seeks an injunction restraining the first and second respondents from examining the applicant pursuant to the summons. The applicant seeks various declarations, including a declaration that the Authorisation and Determination is contrary to law and invalid, and is ultra vires the Act.

6    The existing respondents oppose the application for joinder on a number of grounds. First, the existing respondents resist the joinder on the ground that no relief is sought against the Board. I think that relief is sought “against” the Board and that, subject to the other objections to joinder raised by the existing respondents, the Board should be joined to the proceeding. It is the Board’s act in making the Authorisation and Determination which is said to be contrary to law, invalid, and ultra vires the Act. I agree with the existing respondents that the relief which is most practical, from the applicant’s point of view, is relief in relation to the summons, but I do not think that that means that no relief is sought against the Board.

7    Secondly, the existing respondents oppose the application for joinder on the ground that there is no need to join the Board in view of an undertaking which was proffered. Initially, there was some uncertainty as to the terms of this undertaking, but counsel for the existing respondents said that it was an undertaking given by the Australian Crime Commission to abide by and implement any orders that are made by this Court, subject to appeal rights. I have no reason to doubt that the Board would comply with any declaration made by this Court. However, the undertaking is not given on behalf of the Board, and, in those circumstances, I do not consider that the undertaking proffered by the Australian Crime Commission is sufficient reason not to make an order for joinder.

8    Finally, the principal objection to joinder made by the existing respondents is that the Board is not a juristic entity.

9    In his book, Declaratory Orders (2nd ed, Butterworths, 1984), Justice Young makes the following comments in the context of discussing declaratory relief against unincorporated defendants:

UNINCORPORATED DEFENDANTS

[1008]    In private law, it is necessary to sue a juristic person. Thus, the defendant must be either a natural person or a legally recognised corporate entity. If the persons to be sued are a whole host of persons it is usually necessary to obtain some representative order under the Court Rules.

    ...

... In Australia, ... unless the Board is incorporated the appropriate procedure is to sue each member who constitutes the Board, or alternatively sue the proper officer of the Board and get a representative order that he represent the Board. Unless this is done, there may be all sorts of problems in enforcing the order. It may be that in England some convention about Boards not taking the point and in obeying without question any order of the Court made in proceedings naming their Board has got over the problem, but Australian courts do insist on strictness in this regard.

10    The Board is established by s 7B(1) of the Act. The composition of the Board is set out in s 7B(2):

7B    Establishment of the Board

(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 Director‑General of Security holding office under the Australian Security Intelligence Organisation Act 1979;

(f)    the Commissioner or head (however described) of the police force of each State and of the Northern Territory;

(g)    the Chief Police Officer of the Australian Capital Territory;

(h)    the CEO;

(i)    the Commissioner of Taxation.

11    The functions of the Board are set out in s 7C of the Act and it is sufficient if I set out s 7C(1):

7C    Functions of the Board

(1)    The Board has the following functions:

(a)    to determine national criminal intelligence priorities;

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

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

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

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

(f)    to establish task forces;

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

(h)    to report to the Inter‑Governmental Committee on the ACC’s performance;

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

12    The Act does not provide that the Board is an incorporated body, or is capable of holding property, or is capable of entering into contracts. There is nothing in the Act to indicate that the Board has any assets or property. As far as I can see, the Board does not have any employees. The employment of individuals such as the Chief Executive Officer of the Australian Crime Commission, examiners, and other staff is dealt with in Part II, Division 3 of the Act. The Board is not their employer. In terms of any control exercised over the Board, s 9 of the Act provides that a body known as the Inter-Governmental Committee, which is also established by the Act, has functions which include monitoring generally the work of the Board, overseeing the strategic direction of the Board, and receiving reports from the Board for transmission to governments represented on the Committee and transmitting those reports accordingly. The composition of the Inter-Governmental Committee is dealt with in s 8 of the Act, and sub-s (1) provides:

8    Establishment and constitution of Inter-Governmental Committee

(1)    There is hereby established an Inter-Governmental Committee consisting of:

(a)    a member to represent the Commonwealth, being the Commonwealth Minister; and

(b)    in the case of each participating State – a member to represent that State, being a Minister of the Crown of that State nominated by the Premier of that State.

13    Subject to one qualification, the Board must comply with the directions and guidelines of the relevant Commonwealth Minister. Section 18 of the Act provides as follows:

18    Directions and guidelines to Board

(1)    The Minister may, by notice in writing to the Board, give directions or furnish guidelines to the Board with respect to the performance of its functions and the Board shall comply with any such directions or guidelines.

(2)    However, the Minister must not, without the approval of a resolution passed at a meeting of the Inter-Governmental Committee, being a resolution as to which all the members of the Committee present at the meeting have voted in favour, give any directions or furnish any guidelines to the Board under subsection (1) with respect to particular ACC operations/investigations.

(4)    Where the Minister gives a direction or furnishes a guideline to the Board under subsection (1), the Minister shall:

(a)    as soon as practicable after giving the direction or furnishing the guideline, cause a copy of the direction or guideline to be published in the Gazette; and

(b)    cause a copy of the direction or guideline to be laid before each House of the Parliament within 15 sitting days of that House after the copy is published in the Gazette.

14    The applicant accepts that the Board is not to be considered a juristic entity merely because it is referred to in the Act. The applicant’s principal points in support of the submission that the Board is a juristic entity are as follows. First, the applicant submits that, by reason of its statutory functions, the Board is subject to judicial review. In that context, the applicant referred to the observations of Brennan J (as his Honour then was) in Ainsworth and Another v Criminal Justice Commission (1992) 175 CLR 564 at 585. Secondly, the applicant submits that a relevant consideration as to whether a “body” is a juristic entity is whether it has an identity separate and distinct from its members. The applicant submits that the Board continues to exist despite changes in its membership. Thirdly, the applicant submits that the Board is not an agent or instrumentality of the Commonwealth. Finally, the applicant relies on the fact that the Act expressly provides for an immunity from action or other proceeding for damages in the case of a member of the Board in certain circumstances (s 59B).

15    It is convenient at this point to mention some of the relevant principles. First, the authorities establish that, in addition to a natural person and a corporation, there may be a body which has sufficient features of a corporation as to be recognised as having an artificial legal personality, despite not being incorporated. I refer to The Chaff and Hay Acquisition Committee and Others v J. A. Hemphill and Sons Proprietary Limited (1947) 74 CLR 375 at 396-397 per Williams J. In The Church of Scientology Inc. and Another v Woodward and Others (1982) 154 CLR 25 at 56, Mason J (as his Honour then was) said:

However, the authorities suggest that it is possible to incorporate a statutory body by implication or to endow it with an artificial legal personality falling short of incorporation. This may be achieved by providing that it is to own property, employ its own staff, enter into transactions, sue and be sued in its collective or corporate name. In Chaff and Hay Acquisition Committee v. J. A. Hemphill and Sons Pty. Ltd. this Court held that the Committee, which did not have perpetual succession or a common seal, was not incorporated, but was nevertheless a legal entity distinct from the natural persons who composed it.

(Citation omitted).

16    In Williams and Others v Hursey (1959) 103 CLR 30 at 52, Fullagar J, in considering whether a body was a competent legal person, referred to the significance of the fact that the body in question had a personality which was distinct from that of all or any of its members, and which continued to subsist unchanged notwithstanding the changes which are bound to occur from time to time in its membership.

17    Finally, in the context of the cases, I refer to Elston v Commonwealth of Australia [2013] FCA 108. This was a case relied on by the existing respondents. I do not think that it assists in the resolution of the present issues. It seems to me that in that case the position was made quite clear by the relevant legislation.

18    As to the matters raised by the applicant, a conclusion that the Board is not a juristic entity does not mean that its acts cannot be challenged in a proceeding for judicial review. The applicant’s alternative submission was that the individual members of the Board should be joined to the proceeding. If that is done, an effective challenge to the Board’s Authorisation and Determination can proceed. It is true that the Act does not contemplate the Board ceasing to exist. Presumably, that could only be achieved by an amendment to the Act. However, although the natural persons who occupy the various offices identified in s 7B(2) may change, the offices which they hold will not change, again in the absence of an amendment to the Act. As to whether or not the Board is an agency or instrumentality of the Crown, or an emanation of the Crown, the applicant’s submission that it is not must be considered very doubtful in light of the power given to the relevant Commonwealth Minister in s 18 of the Act. As to the applicant’s reliance on the immunity conferred on members of the Board by s 59B of the Act, I cannot see how that supports the conclusion that the Board itself is a juristic entity.

19    The point is not an easy one and it appears not to have been decided before. In fact, the Board has been a party, apparently without objection, in other proceedings: JJ v Board of the Australian Crime Commission and Others (2011) 197 FCR 138; AA and Others v Board of the Australian Crime Commission and Others (2009) 178 FCR 171; and P v Board of Australian Crime Commission and Others (2006) 151 FCR 114. Nevertheless, the point is taken in this proceeding and I have reached the view that the Board is not a juristic entity. There is nothing in the Act to indicate that the Board has been accorded an artificial legal personality. There is no express statement to the effect that it is an incorporated body, or is capable of suing or being sued. It has no assets and it is not given the power to enter into contracts. Subject to the qualification referred to in s 18(2) of the Act, it is bound to comply with any directions or guidelines issued by the Commonwealth Minister.

20    As I have said, the applicant seeks the joinder of the members of the Board in the alternative. I will give the parties the opportunity to prepare an appropriate order. If the Rules allow it, it would seem appropriate that one member of the Board named by his or her office represent the members of the Board.

Particulars of paragraph 24 of the amended Defence

21    The applicant seeks particulars from the existing respondents of an allegation in paragraph 24 of their Amended Defence. That paragraph responds to the applicant’s plea in paragraph 24 of the Second Statement of Claim, which is in the following terms:

Highest Risk Criminal Targets

24.    Highest Risk Criminal Targets (‘HRCT’) are defined in the determination in part by reference to the National Criminal Target List (‘NCTL’) (‘the list’).

24.1    The list is not set out in the purported determination.

24.2    The content of the list is not limited by reference to the date of the purported determination.

24.3    The content of the list changes over time.

24.4.    The list contains reference to targets.

24.5    The ‘targets’ included in the list are identified for inclusion in the list by entities other than the ACC.

24.6    Information other than references to targets is included in the list.

24.7    Entities referred to in the purported determination as ‘the partners of the ACC’ are not defined in the purported determination.

24.8    The term ‘partners of the ACC’ is inherently vague and uncertain and potentially limitless.

24.9    The ‘partners of the ACC’ are persons or entities other than:

24.9.1.    The CEO of the ACC;

24.9.2.    An examiner appointed under subsection 46B(1) of the Act;

24.9.3.    A member of staff of the ACC;

24.9.4.    The Commissioner of the Australian Federal Police;

24.9.5.    The Secretary of the Department;

24.9.6.    The Chief Executive Officer of Customs;

24.9.7.    The Chairperson of the Australian Securities and Investments Commission;

24.9.8.    The Director-General of Security holding office under the Australian Security Intelligence Organisation Act 1979;

24.9.9    The Commissioner or head (however described) of the police force of each State and of the Northern Territory;

24.9.10    The Chief Police Office of the Australian Capital Territory;

24.9.11.    The Commissioner of Taxation.

This plea is said to support the applicant’s case that the Determination is invalid.

22    The definition of “highest risk criminal targets (HRCTs)” in the Determination (including the footnote) is as follows:

highest risk criminal targets (HRCTs) means entities, including those entities identified within the (classified) National Criminal Target List (NCTL)1, which an authorised ACC officer has reasonable grounds for suspecting:

(a)    may be engaged in specified criminal activity in one or more jurisdiction;

(b)    may have a high level of intent and ability to commit specified criminal activity; and

(c)    may have one or more of the following attributes:

(i)    a high degree of resilience to disruption by law enforcement;

(ii)    a thorough understanding of law enforcement methodology and its limitations and employ counter-strategies;

(iii)    access to law enforcement or regulatory information;

(iv)    a willingness and capacity to corrupt officials;

(v)    a willingness and capacity to pervert the course of justice through the intimidation of witnesses and officials and the use of violence;

                _____________________________________________________________________

1The NCTL is an intelligence tool to support law enforcement decision making. Targets are identified for inclusion in the NCTL by the ACC and its partners through a (classified) intelligence process assessing the risk they pose to the Australian community and a series of threat indicators, including:

(i)    corruption or infiltration of public officials;

(ii)    corruption or infiltration of private organisations and businesses;

(iii)    violence;

(iv)    intelligence/counter-intelligence use;

(v)    geographical influence;

(vi)    discipline;

(vii)    social and cultural influence.

23    Paragraph 24 of the Amended Defence is in the following terms:

The Respondents admit paragraphs 24.1 to 24.7 inclusive. In relation to paragraph 24.9, the Respondents say that the ‘partners of the ACC’ are entities which contribute to the National Criminal Target List which are not part of the ACC as established by s 7 of the Act. Otherwise, the Respondents deny paragraph 24.

24    By letter from the applicant’s solicitors dated 27 August 2014, the applicant sought the following particulars:

Please give full particulars of the ‘partners of the ACC’, by:

1.    Naming the entities which contribute to the National Criminal Target List.

2.    Stating whether the entity is a body or person.

3.    In respect of a body or person, stating whether that is a private body or person, or a public body or a person.

4.    In respect of an entity being a public body, stating whether the body is a State or Commonwealth agency or instrumentality.

5.    In respect of any person, stating whether or not the person is an employee, or an officer of the State or Commonwealth.

25    The solicitors for the existing respondents responded by letter dated 29 August 2014 in the following terms:

As to the request for particulars, we are instructed to advise that the ‘partners of the ACC’, referred to in paragraph 24 of our clients’ amended defence, are:

–    all Australia Police services

–    the Australian Customs and Border Protection Service

–    the New South Wales Crime Commission

–    the Queensland Crime and Corruption Commission

–    the Australian Securities and Investments Commission.

With respect to the other requested particulars, namely points 2-5 of your letter, we do not see how your client would be prejudiced without them or how they are otherwise relevant to the legal issues which the Court is called upon to resolve. Accordingly, our clients do not propose to supply them at this time.

26    The applicant seeks an order under r 16.45 of the Rules that the existing respondents provide the particulars requested in paragraphs 2-5 inclusive of the letter from the applicant’s solicitors.

27    The applicant submits that the particulars are relevant in two ways. First, they are relevant because, before the Board may determine that an investigation into matters relating to federally relevant criminal activity is a special investigation, it must consider whether ordinary police methods of investigation into the matters are likely to be effective. The applicant will contend that the Board has not done that because “its partners” have played a role in the formulation of the National Criminal Target List. In the circumstances, the applicant needs to know the identity of the partners and the other matters requested by the applicant. I reject this argument. Subject to the applicant’s second submission, the applicant now knows the identity of the partners and I cannot see how the additional information requested in paragraphs 2-5 inclusive is relevant to the argument.

28    Secondly, the applicant submits that the request for particulars should be answered in relation to the first two “entities”, that is to say, “all Australia Police services” and “the Australian Customs and Border Protection Services”, because it is not clear what these entitles comprise. I accept that submission, but only as to paragraph 2 of the request by the applicant’s solicitors.

29    The existing respondents should provide the particulars sought in paragraph 2 of the letter of the applicant’s solicitors dated 27 August 2014 as to “all Australia Police services” and “the Australian Customs and Border Protection Service”. Otherwise, the application for particulars is dismissed.

conclusions

30    Paragraph 2 of the interlocutory application will be adjourned to a date to be fixed. With respect to paragraph 3 of the interlocutory application, the respondents must provide the particulars sought in paragraph 2 of the letter of the applicant’s solicitors dated 27 August 2014 as to “all Australia Police services” and “the Australian Customs and Border Protection Service”. Otherwise, paragraph 3 of the interlocutory application is dismissed.

Associate:

Dated:    20 November 2014