FEDERAL COURT OF AUSTRALIA

XCIV v The Australian Crime Commission [2015] FCA 586

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    The applicant pay the costs of the respondents, save for the costs the subject of Order 3.

3.    The respondents pay the costs of and incidental to the respondents’ interlocutory application to vary the names of the respondents to the originating application.

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

REASONS FOR JUDGMENT

1    In May 2014, the applicant, who is identified in these proceedings by the pseudonym XCIV, was served with a summons (Summons) issued by an examiner of the Australian Crime Commission (ACC). The Summons was issued under, or purported to be issued under, s 28 of the Australian Crime Commission Act 2002 (Cth) (the Act). It required the applicant to appear before an examiner of the ACC to give evidence about serious drug offences contrary to Part 9.1 of the Criminal Code (presumably the Criminal Code Act 1995 (Cth)).

2    The Summons stated that the examination of the applicant was for the purpose of a special investigation under s 7C of the Act. The Summons attached a copy of a determination by the Board of the ACC (Board) pursuant to s 7C(3) of the Act that the relevant investigation was a special investigation (the Determination).

3    In these proceedings, the applicant challenges both the Summons and the Determination. He seeks relief under ss 5 and 6 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) and s 39B of the Judiciary Act 1903 (Cth) (Judiciary Act) in the form of declarations that the Summons and the Determination are invalid. He also seeks an injunction restraining the examiner from examining him pursuant to the Summons and an injunction restraining the ACC from “permitting” the examination. The originating application names the ACC and the examiner as the first and second respondents respectively.

legislative provisions

4    The ACC is established by s 7 of the Act. Section 7(2) of the Act provides that the ACC “consists of” the Chief Executive Officer of the ACC (CEO), examiners (appointed under s 46B(1) of the Act) and members of the staff of the ACC (as defined in s 4 of the Act).

5    Section 7B of the Act establishes the Board. The functions of the Board are set out in s 7C(1) of the Act. They include, relevantly:

(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;

6    Subsections 7C(2) to (5) relate to special operations and special investigations. They provide as follows:

Special operations

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

Note 1:    See also subsection 7G(4) for the voting rule that applies in relation to such a determination.

Note 2:    See also Division 2 for the examination powers available if there is a special operation.

Special investigations

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

Note 1:    See also subsection 7G(4) for the voting rule that applies in relation to such a determination.

Note 2:    See also Division 2 for the examination powers available if there is a special investigation.

Further details

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

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

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

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

Informing the Inter-Governmental Committee

(5)    The Chair of the Board must, within the period of 7 days beginning on the day a determination under subsection (2) or (3) is made, give a copy of the determination to the Inter-Governmental Committee.

7    To comprehend the scope and boundaries of s 7C(3), it is necessary to have regard to the definition of “federally relevant criminal activity” in s 4 of the Act. As is (regrettably) common in much Commonwealth legislation, that definition in turn uses a number of defined terms, including “relevant criminal activity” and “federal aspect”. Those defined terms also use further defined terms.

8    The expression “federally relevant criminal activity” is defined in s 4 of the Act in the following terms:

federally relevant criminal activity means:

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

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

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

(ii)    has a federal aspect.

9    The expression “relevant criminal activity” which is used in the definition of “federally relevant criminal activity” is in turn defined in s 4 of the Act in the following terms:

relevant criminal activity means any circumstances implying, or any allegations, that a relevant crime may have been, may be being, or may in future be, committed against a law of the Commonwealth, of a State or of a Territory.

10    A “relevant crime” is defined in s 4 of the Act as meaning “serious and organised crime” or “Indigenous violence or child abuse.” Those expressions are in turn defined in s 4 of the Act.

11    An important aspect of the concept of “federally relevant criminal activity” is the concept of State offences having a “federal aspect”. This concept is dealt with at length in s 4A of the Act. In summary, a State offence can have a federal aspect in two ways. First, a State offence may have a federal aspect where the State offence could potentially fall within Commonwealth legislative power because of the elements of the offence or the circumstances in which it was committed. Second, there may be a federal aspect where the investigation of the State offence is incidental to the ACC investigating a Commonwealth or Territory offence, or where an intelligence operation relating to the State offence is incidental to the ACC undertaking an intelligence operation relating to a Commonwealth or Territory offence.

12    The Inter-Governmental Committee referred to in s 7C(5) of the Act is a committee established by s 8 of the Act consisting of members representing the Commonwealth and each participating State. Its functions are set out in s 9 of the Act and include monitoring generally the work of the ACC and the Board.

13    Section 24A of the Act provides that an examiner may conduct an examination for the purposes of a “special ACC operation/investigation.” That expression is defined in s 4 of the Act in the following terms:

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

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

14    Section 28 of the Act gives an examiner the power to issue a summons to appear at an examination. It relevantly provides as follows:

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

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

(a)    before the issue of the summons; or

(b)    at the same time as the issue of the summons.

(2)    A summons under subsection (1) requiring a person to appear before an examiner at an examination must be accompanied by a copy of the determination of the Board that the intelligence operation is a special operation or that the investigation into matters relating to federally relevant criminal activity is a special investigation.

(3)    A summons under subsection (1) requiring a person to appear before an examiner at an examination shall, unless the examiner issuing the summons is satisfied that, in the particular circumstances of the special ACC operation/investigation to which the examination relates, it would prejudice the effectiveness of the special ACC operation/investigation for the summons to do so, set out, so far as is reasonably practicable, the general nature of the matters in relation to which the person is to be questioned, but nothing in this subsection prevents an examiner from questioning the person in relation to any matter that relates to a special ACC operation/investigation.

(4)    ...

(5)    ...

(6)    ...

(7)    The powers conferred by this section are not exercisable except for the purposes of a special ACC operation/investigation.

(8)    ...

Relevant facts

15    There is essentially no dispute concerning the relevant facts.

16    The Summons served on the applicant states that it was issued by the examiner at 8.50am on 14 May 2014. It is addressed to the applicant and relevantly states as follows:

Pursuant to subsection 28(1) of the Australian Crime Commission Act 2002 (the Act), for the purposes of a Special ACC Investigation being conducted by the Australian Crime Commission:

1.    being satisfied that it is reasonable in all the circumstances to do so;

2.    having recorded in writing the reasons for being so satisfied at 8.45 pm on 14th May 2014;

3.    I summon you:

(a)    to appear at 10:00 am on Tuesday, 20 May 2014 before an Examiner at an examination at the Australian Crime Commission, Tower B, Centennial Plaza, Level 10, 280 Elizabeth Street, SYDNEY and from day to day unless excused or released from further attendance;

(b)    to give evidence of or about the following federally relevant criminal activity:

i)    serious drug offences contrary to Part 9.1 of the Criminal Code which are punishable by imprisonment for a period of three years or more;

17    The Summons also states that it annexes, pursuant to s 28(2) of the Act, a copy of the ACC Board’s “determination that the investigation is a special investigation”. Annexed to the Summons is an instrument made by the Board under s 7C of the Act by resolution made on 4 September 2013. The instrument is named the Australian Crime Commission Special Investigation Authorisation and Determination (Highest Risk Criminal Targets No.2) 2013.

18    The terms of this instrument are important. It sets out the nature and scope of the ACC special investigation and comprises the Determination challenged by the applicant in these proceedings.

19    Clauses 1 to 7 of the Determination are in the following terms (footnotes omitted):

1    Name of Instrument

This Instrument is the Australian Crime Commission Special Investigation Authorisation and Determination (Highest Risk Criminal Targets No.2) 2013.

2    Commencement

This Instrument commences immediately after it is made.

3    Definition

In this Instrument:

Act means the Australian Crime Commission Act 2002 (Cth);

ACC means the Australian Crime Commission;

Australia’s national interests means the interests of Australia’s national security, Australia’s foreign relations, and Australia’s national economic well-being;

authorised ACC officer means the head of investigation determined by the CEO under subsection 46A(2A) of the Act, or a member of the staff of the ACC authorised in writing by the CEO;

Criminal Code has the same meaning as in the Criminal Code Act 1995 (Cth) as amended;

entity means a natural person, a body corporate (other than an exempt public authority within the meaning of the Corporations Act 2001), a partnership, an unincorporated body, or a trust (including a reference to the trustee of the trust);

highest risk criminal targets (HRCTs) means entities, including those entities identified within the (classified) National Criminal Target List (NCTL), 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;

jurisdiction means any State or Territory or an overseas country;

specified criminal activity means the federally relevant criminal activity described in Schedule 1.

4    Authorisation

Pursuant to paragraph 7C (1) (c) and subsection 7A (c) of the Act, the Board authorises the ACC to investigate specified criminal activity until 30 June 2016.

5    Reporting

In accordance with paragraph 7C (1) (b) and subsection 7A (d) of the Act, the Board requests that the ACC provide a report to the Board on the outcomes of this investigation at or before the first Board meeting after 30 June 2016.

6    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 specified criminal activity are likely to be effective;

(b)    determines that ordinary police methods of investigation into specified criminal activity are not likely to be effective; and

(c)    determines that the investigation authorised by this instrument is a special investigation.

7    Description of general nature of the circumstances or allegations

The general nature of the circumstances or allegations constituting specified criminal activity are set out in Schedule 1.

20    Schedule 1, which is referred to in the definition of “specified criminal activity” in clause 3 of the Determination, is relevantly in the following terms (footnotes omitted):

Schedule 1        Authorised investigation

1    Matter to be Investigated

The matter to be investigated is whether, in accordance with the allegations mentioned in clause 3 and in the circumstances mentioned in clause 2, federally relevant criminal activity:

(a)    was committed before the commencement of this Instrument; or

(b)    was in the process of being committed on the commencement of this Instrument; or

(c)    may in future be committed;

and, if so, the nature and extent of that activity and the identity and role of entities involved in it.

2    Circumstances

The general nature of the circumstances constituting federally relevant criminal activity that may have been, may be being, or may in future be, occurring are those implied or suggested from information available to the ACC and other Australian law enforcement agencies indicating that:

(a)    HRCTs are responsible for a significant proportion of serious and organised crime, and represent a serious risk to Australia’s economy, business and institutions and thereby Australia’s national interests;

(b)    HRCTs are typically involved in the trade of illicit commodities such as drugs and firearms but may be enablers of criminal activity (e.g. through the provision of money laundering services or secure communications). HRCTs are increasingly involved in cyber and technology enabled crime and have international linkages; or

(c)    HRCT criminal activity is resilient to traditional law enforcement investigations and ACC experience with the investigation of such HRCT activity indicates that, to be effective, ACC and partner bodies need to adopt a collaborative approach encompassing each of the following elements:-

(i)    the development of more comprehensive intelligence in relation to the nature and extent of HRCT criminal activity (including evaluation of persons not currently listed on the NCTL or whose impact on Australians or Australia’s national interests is not yet fully assessed);

(ii)    preventing, disrupting, disabling and dismantling identified HRCT criminal enterprises through enforcement, regulation, policy and other action;

(iii)    enhanced collaboration with international bodies and private sector bodies; and

(iv)    the use of ACC coercive powers to facilitate the collection of intelligence and evidence in relation to HRCT criminal activity not available through other information collection methods.

3    Allegations

The general nature of the allegations constituting federally relevant criminal activity that may have been, may be being, or may in future be, committed is that HRCTs may be engaged, in concert with one another or with other entities, in one or more of the following activities:

(a)    serious drug offences contrary to Part 9.1 of the Criminal Code which are punishable by imprisonment for a period of three years or more;

(b)    the unlawful importation, possession or conveyance of, or dealing in, illegal drugs within the meaning of the Crimes Act 1914 (Cth) or the Customs Act 1901 (Cth);

(c)    cross-border firearms trafficking contrary to Part 9.4 of the Criminal Code;

(d)    offences involving violence punishable by imprisonment for a period of three years or more;

(e)    tax evasion constituted by activity contrary to section 29D or section 86 of the Crimes Act 1914 (Cth), or sections 134.1, 134.2, 135.1, or 135.4 of the Criminal Code;

(f)    money laundering, within the meaning of section 81 of the Proceeds of Crime Act 1987 (Cth);

(g)    dealing with money or property contrary to sections 400.3, 400.4, 400.5, 400.6 (1), 400.6 (2) or 400.7 (1) of the Criminal Code;

(h)    theft;

(i)    identity crime, including offences against Part 10.8 of the Criminal Code;

(j)    offences contrary to section 474.14 of the Criminal Code (using a telecommunications network with intention to commit a serious offence), which are serious and organised crime as defined in the Act;

(k)    criminal associations and organisation offences contrary to sections 390.3, 390.4, 390.5 or 390.6 of the Criminal Code;

Connected offences

(l)    any of the following activities, where those offences may have been, or may be, connected with a course of activity involving the commission of any of the offences referred to in paragraphs (a) to (k);

(i)    perverting the course of justice;

(ii)    corruption or improper interference with the due administration of justice within the meaning of section 33 of the Crimes Act 1914 (Cth);

(iii)    intimidation of or interference with a witness or proposed witness in a judicial proceeding within the meaning of section 36A of the Crimes Act 1914 (Cth);

(iv)    bribery of a Commonwealth public official, within the meaning of section 141.1 of the Criminal Code;

(v)    giving a corrupting benefit to a Commonwealth public official, or receiving a corrupting benefit by a Commonwealth public official, within the meaning of section 142.1 of the Criminal Code;

(vi)    abuse of public office by a Commonwealth public official within the meaning of section 142.2 of the Criminal Code;

(vii)    market misconduct and other prohibited conduct relating to financial products and financial services contrary to Part 7.10 of the Corporations Act 2001 (Cth);

(viii)    conduct in relation to securities contrary to Part 7.11 of the Corporations Law (Cth);

(ix)    unlawful activities relating to the commission of any of the following offences (all of which constitute a serious offence within the meaning of the Proceeds of Crime Act 2002 (Cth)):

A    an offence against section 15 (reports about transfers of currency into or out of Australia) of the Financial Transaction Reports Act 1988 (Cth) involving a transaction of at least $50,000 in value;

B    an offence against section 29 (false or misleading information) of the Financial Transaction Reports Act 1988 (Cth) involving a transaction of at least $50,000 in value;

C    an offence against section 24 (opening or operating accounts in a false name etc,) of the Financial Transaction Reports Act 1988 (Cth) where transactions on the relevant account total at least $50,000 in value during any six-month period;

D    an offence against section 31 (conducting transactions to avoid reporting requirements) of the Financial Transaction Reports Act 1988 (Cth) where transactions in breach of that section by the person committing that offence total at least $50,000 in value during any six-month period;

E    an offence against section 53 (reports about movements of physical currency into or out of Australia) of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) involving a transaction of at least $50,000 in value;

F    an offence against section 59 (reports about movements of bearer negotiable instruments into or out of Australia) of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) involving a transaction of at least $50,000 in value;

G    an offence against section 136 (false or misleading information) of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) involving a transaction of at least $50,000 in value;

H    an offence against section 137 (false or misleading documents) of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 involving a transaction of at least $50,000 in value;

I    an offence against section 139 (providing a designated service using a false customer name or customer anonymity) of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) where;

(1)    the customer concerned had an account in relation to the provision of the designated service concerned; and

(2)    transactions on the account total at least $50,000 in value during any six-month period beginning after the commencement of Part 12 of that Act;

J    an offence against section 141 (non-disclosure of other name by which customer is commonly known) of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) where:

(1)    the customer concerned had an account in relation to the provision of the designated service concerned; and

(2)    transactions on the account total at least $50,000 in value during any six-month period beginning after the commencement of Part 12 of that Act;

K    an offence against section 142 (conducting transactions so as to avoid reporting requirements relating to threshold transactions) of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) where the transactions in breach of that section by the person committing the offence total at least $50,000 in value during any six-month period;

L    an offence against section 143 (conducting transfers so as to avoid reporting requirements relating to cross-border movements of physical currency) of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) where the transactions in breach of that section by the person committing the offence total at least $50,000 in value during any six-month period;

(x)    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 (k); and

(m)    other unlawful activities that are related to or connected with these activities and that involve relevant offences against a law of a State that have a federal aspect.

Note:    On 24 May 2001, the following amendments took effect under the Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000 (Cth) [Act No. 137 of 2000]:

(a)    the repeal of sections 29D, 33, 73 and subsection 86 (2) of the Crimes Act 1914 (Cth); and

(b)    the insertion of sections 134.1, 134.2, 135.1, 135.4, 141.1, 142.1 and 142.2 in the Criminal Code.

21    The ACC tendered a redacted copy of the examiner’s statement of reasons for the issue of the Summons (Reasons). The redacted parts of the Reasons were the subject of a public interest immunity claim by the ACC. The applicant did not dispute or contest the public interest immunity claim. There was no objection to the tender of the redacted Reasons.

22    The Reasons state that in determining whether to issue the Summons, the examiner had regard to the Determination, a written application (comprised of a statement of facts and circumstances dated 2 May 2014 and legal submissions dated 12 May 2014) and a draft of the Summons. The redacted Reasons state as follows:

I have decided to issue the summons, based upon my consideration of the materials detailed above, and for the reasons outlined below:

(a)    the summons will be issued for the purposes of the special ACC investigation set out in the Determination (subsection 28(7) of the Act);

(b)    the Determination remains operative (subsection 28(7) of the Act); and

(c)    I am satisfied that it is reasonable in all the circumstances to issue the summons because of the following;

Project [redacted] was approved on 8 March 2013 under the Australian Crime Commission Special Operation Authorisation and Determination (Australian Crime Commission Special Investigation Authorisation and Determination (Highest Risk Criminal Targets) 2011 (“the HRCT Determination”) and endorsed until [redacted]. The project was transitioned to the HRCT2 Determination on [redacted].

The Statement of Facts and Circumstances outlines the activities of a criminal network (syndicate) engaging in, both now and in the past, conduct constituting federally relevant criminal activity connected with Project [redacted] (by reference to Schedule 1 clause 3 of the HRCT2 Determination). It is believed that similar such criminal activity may be being or may in future be committed by the witness [redacted] and other related entities.

The allegations, as specified in Schedule 1 clause 3 of the HRCT2 Determination, include the following:

•    serious drug offences contrary to Part 9.1 of the Criminal Code which are punishable by imprisonment for a period of three years or more and;

•    dealing with money or other property contrary to sections 400.3, 400.4, 400.5, 400.6(1) & (2) and 400.7(1) of the Criminal Code;

The Statement of Facts and Circumstances disclose that the [redacted] is suspected to have a significant role in the [redacted]. Of particular note, between [redacted] attendance on these occasions suggests that he may have [redacted].

It is anticipated that [redacted] will not willingly assist law enforcement, and is likely to resist providing any useful information unless compelled to do so under examination.

It is anticipated [redacted] will be able to provide information concerning the [redacted]. The witness should have information concerning [redacted]. It is also possible [redacted] is [redacted].

[Redacted].

It is suspected [redacted]. It is anticipated [redacted] will be able to provide information concerning [redacted].

The proposed time, date and location of the examination are reasonable.

23    The ACC also tendered a redacted copy of the examiner’s statement of reasons “for the extent to which the Summons sets out the general nature of the matters in relation to which the person is to be questioned” pursuant to s 28(3) of the Act (the s 28(3) Reasons). The redactions in this document were also made as a result of the ACC’s public interest immunity claim. The s 28(3) Reasons are relevantly in the following terms:

2)    Based upon my consideration of the materials detailed above, I am satisfied that, in the particular circumstances of the special ACC investigation to which the examination relates, it would prejudice the effectiveness of the investigation for the summons to state anything beyond the general nature of the matters in relation to which the person is to be questioned because of:

o    The covert nature of the investigation

o    The relationship between the witness and other persons of interest to the Project.

o    [Redacted]

3)    Except to the extent that I am so satisfied, the summons sets out, so far as is reasonably practicable, the general nature of the matters in relation to which the person is to be questioned.

24    Importantly, given the nature of one of the grounds of challenge to the Summons, both the Reasons and the s 28(3) Reasons state that they were recorded at 8.45am on 14 May 2014.

25    Two other documents tendered by the ACC warrant brief mention. Both contain redactions as a result of the ACC’s public interest immunity claim. The first document is headed “Application for the issue of a summons” and is dated 12 May 2014 (the Application). It contains a statement of facts and circumstances and legal submissions. The second document is headed “Reasons for inclusion of notation in the summons prohibiting disclosure” (the non-disclosure Reasons). This document contains the examiner’s reasons for including a non-disclosure notification in the Summons pursuant to s 29A of the Act.

26    The applicant relies on an affidavit affirmed by him which was read at the hearing without objection. The applicant’s affidavit includes the following assertions:

3.    The summons on its face states that it is for the purpose of a Special ACC Investigation but does not identify that Special ACC Investigation.

4.    An annexure to the summons served on me is entitled ‘Australian Crime Commission Special Investigation Authorisation and Determination (Highest Risk Criminal Targets No 2) 2013’.

5.    I have read this annexure and do not know what entities are referred to as highest risk criminal targets and therefore do not know what evidence I can give about such entities.

6.    I do not know of any evidence that I could give about serious drug offences contrary to Part 9.1 of the Criminal Code which are punishable by imprisonment for a period of three years or more which relates to the Special ACC Investigation referred to in paragraph 3 above.

27    The applicant was not cross-examined. This evidence was accordingly not challenged. That is not to say that it is necessarily relevant or is to be given any, or any significant, weight in considering the grounds of challenge to the Summons and Determination.

Grounds of Challenge and SUBMISSIONS

28    The applicant filed both an originating application and pleadings that purport to articulate the grounds of his challenge to both the Summons and Determination. Regrettably, both documents are unhelpful. To a large extent, they simply replicate virtually all of the available grounds set out in ss 5 and 6 of the ADJR Act without any, or any meaningful, particulars. The lengthy and detailed written submissions filed on the applicant’s behalf also do not greatly assist in defining or confining the applicant’s case. The written submissions are, for the most part, not clearly linked to the grounds in the originating application and pleadings.

29    At the hearing, however, the applicant, through his counsel, narrowed his case to four grounds of challenge to the Summons and four grounds of challenge to the Determination. The applicant confirmed at the hearing that, to the extent that his originating application, pleadings and written submissions contain other grounds, those additional grounds (and associated submissions) are not pressed.

30    In summary, the grounds of challenge to the Summons are as follows.

31    First, it is contended that the examiner failed to comply with s 28(1A) of the Act because he did not make a record in writing of the reasons for the issue of the Summons either before, or at the same time as, the issue of the Summons. The applicant contends that this is established by the terms of the Summons itself. The Summons states that it was issued at 8.50am on 14 May 2014. Paragraph 2 of the Summons however, states that the examiner recorded his reasons at 8.45pm on 14 May 2014, twelve hours after the Summons was issued.

32    Second, the applicant contends that the circumstances are such that the examiner could not have been satisfied that it was “reasonable in all the circumstances” to issue the Summons as required by s 28(1A) of the Act. The applicant’s submissions in relation to this ground are directed primarily to the Reasons. He relies, in particular, on the contention that there is nothing in the Reasons which is specific to him. He also relies on his evidence that he does not know of any evidence he could give about serious drug offences. Finally, he contends that the Reasons reveal that the examiner did not turn his mind to whether the Summons was issued for the purposes of a special operation or a special investigation. This contention appears to be based on an alleged error in the Reasons concerning the description of an earlier s 7C determination by the Board.

33    Third, the applicant submits that the Summons is invalid because it fails to set out, so far as is reasonably practicable, the general nature of the matters in relation to which he is to be questioned as required by s 28(3) of the Act. In relation to this ground, the applicant relies both on the terms of the Summons itself and on the terms of the s 28(3) Reasons. He contends, amongst other things, that there is nothing in the s 28(3) Reasons which explains why it would prejudice the effectiveness of the special investigation to state anything in the Summons beyond the reference to serious drug offences in the Criminal Code. He also submits that there is nothing in the Reasons to explain the reference to serious drug offences.

34    Fourth, the applicant contends that the Summons is invalid because it relies on the Determination, which he contends is itself invalid.

35    The applicant’s four grounds of challenge to the Determination may be summarised as follows.

36    First, the applicant contends that before making the Determination, the Board did not consider whether ordinary police methods of investigation were likely to be effective as required by s 7C(3) of the Act. In this regard, the applicant relies primarily on the broad wording of the Determination and the fact that the ACC did not call any evidence to show what consideration was given to this matter.

37    Second, the applicant contends that the Determination does not describe the general nature of the circumstances or allegations constituting the federally relevant criminal activity as required by s 7C(4)(a) of the Act. This ground is based on the applicant’s construction of the terms of the Determination. In particular, the applicant points to the expression “specified criminal activity” which is defined in clause 3 of the Determination. He submits that the definition is not confined to criminal activity that may constitute “federally relevant criminal activity” as defined in s 4 of the Act. The applicant also relies on the fact that the question whether an activity may be a “specified criminal activity” as defined in the Determination ultimately hinges on whether an authorised ACC officer has reasonable grounds for suspecting that the person or entity engaging in the activity has certain attributes that define the person as a “highest risk criminal target”.

38    The third ground of challenge to the Determination is related to the second. The applicant contends that the scope of the Determination is so broad that it could not be considered to be a proper exercise of power under s 7C. This ground again hinges on the alleged breadth of the defined term “specified criminal activity”. The applicant submits that the scope of the Determination is not limited to “federally relevant criminal activity” as defined in s 4 of the Act. The terms of the Determination are, in the applicant’s submission, so broad that it amounts to an inquiry into any possible criminal activity.

39    Fourth, the Determination is said to be invalid because it amounts to an impermissible delegation of the Board’s power under s 7C to an officer or officers of the ACC. The applicant’s submissions, in this respect, focus on the fact that the scope of the authorised investigation set out in Schedule 1 of the Determination is, by reason of the definition of “highest risk criminal targets” in clause 3, governed by whether an authorised ACC officer has reasonable grounds for suspecting that a person or entity may have certain attributes. This is said to amount to an impermissible delegation of the power to make a s 7C determination to authorised ACC officers.

40    Finally, the applicant raises, or purports to raise, a constitutional point. Notices were served in accordance with s 78B of the Judiciary Act. Only the Attorney-General for the State of South Australia (the SA Attorney) decided to intervene. The s 78B notices describe the constitutional issue in the following terms:

3.1.    The constitutional validity of the relevant legislative provisions of the Australian Crime Commission Act 2002 (“the Act”), which are said to confer upon the Board of the Australian Crime Commission power to make a determination in terms of the Australian Crime Commission Special Investigation Authorising and Determination (Highest Risk Criminal Targets No. 2) 2013. The constitutional issue arising concerns whether such legislative provisions are unsupported by any relevant head of Commonwealth legislative power, including the incidental power in section 51(xxxix) of the Australian Constitution.

3.2.    The Applicant further, or in the alternative, contends that to the extent that the relevant legislative provisions of the Act purport to confer upon the Second Respondent to the above proceedings, that is an examiner, the power to summons the Applicant, such legislative provisions are unsupported by any relevant head of Commonwealth legislative power, including the incidental power in section 51 (xxxix) of the Australian Constitution.

3.3.    The Applicant further, or in the alternative, contends that the Summons that was issued to the Applicant in this matter the subject of the challenge in the above proceedings and the Australian Crime Commission Special Investigation Authorisation and Determination (Highest Risk Criminal Targets No. 2) 2013 constitutes impermissible exercises of executive power contrary to the requirements of section 61 of the Australian Constitution and are invalid.

41    As the applicant developed his arguments in relation to the constitutional point at the hearing, it became readily apparent that the constitutional point was largely illusory. As the SA Attorney submits, the so-called constitutional point ultimately devolves into a question whether the Determination and Summons are within power.

42    The applicant’s primary argument is essentially that, because the Determination and Summons are so broad, they are ultra vires. If, however, it is found that they are within power, the applicant contends that it follows that the relevant legislative provisions (presumably ss 7C and 28) must themselves be invalid because they cannot be supported by a relevant head of legislative power. That broad submission aside, the applicant’s arguments in relation to the so-called constitutional issue hinge, it would seem, on the contention that the Determination is not limited to “federally relevant criminal activity” as defined in s 4 of the Act.

43    It is unnecessary to summarise the submissions advanced on behalf of the respondents, the ACC and the examiner. Suffice it to say that they submit that the applicant has failed to establish any of the alleged errors or failures in relation to the Summons and the Determination. Likewise, it is unnecessary to summarise the SA Attorney’s submissions in relation to the constitutional point. Because the constitutional point ultimately devolved into a question concerning the validity of the Determination, the SA Attorney effectively supported the submissions advanced by the ACC and the examiner in relation to that question.

A preliminary issue - who is the correct respondent?

44    As earlier indicated, the originating application names the ACC and the examiner as the first and second respondents respectively.

45    At the commencement of the hearing, however, counsel for the ACC and the examiner applied for an order pursuant to r 9.08 of the Federal Court Rules 2011 (Cth) (the Rules), removing the ACC and the examiner as respondents and replacing them with the Commonwealth of Australia (Commonwealth). Limited, if any, notice was given to the applicant in relation to that application. The application was made orally. No evidence was filed in support of the application.

46    The applicant opposed the application and indicated that, given the limited notice, he was not in a position to deal with it at the hearing. Ultimately, the issue was deferred so as to avoid any delay in the hearing of the matter and to enable the parties to file written submissions. It was plainly unsatisfactory for this issue to be raised without proper notice, at the commencement of the hearing, and in the absence of proper submissions dealing with what was and is a potentially complex issue.

47    When applying for the order at the hearing, counsel for the ACC and the examiner said that there had been a “great deal of untidiness” in past litigation concerning the ACC. That observation, which related to alleged “untidiness” concerning the naming of the proper respondent in judicial review challenges relating to decisions or conduct under the Act, may well be correct. That said, it would appear that neither the ACC nor the Commonwealth has ever taken the point before, at least until recently. It would appear that in previous cases the ACC has been named without objection: see for example X v Australian Crime Commission (2004) 139 FCR 413 (X v ACC). There are also cases where the Board of the ACC has been named: see for example JJ v Board of the Australian Crime Commission (2011) 197 FCR 138 (JJ v Board of the ACC); AA v Board of the Australian Crime Commission (2009) 178 FCR 171; P v Board of the Australian Crime Commission (2006) 151 FCR 114; and cases where the examiner has been named: see for example ABC v Sage (2009) 175 FCR 319; Stoten v Sage (2005) 144 FCR 487. It is not readily apparent that any objection has been taken in the past to the naming of the ACC or the examiner as parties.

48    In XX v Australian Crime Commission [2014] FCA 177 (XX v ACC), the applicant challenged a summons issued under s 28 of the Act and a determination made under s 7C of the Act in circumstances not dissimilar to this matter. The applicant in that matter named the ACC and the relevant ACC examiner as respondents. No objection was initially taken to that course by the respondents. The applicant then sought to join the Board of the ACC. Besanko J held that the Board could not be joined because it was not a juristic entity. His Honour later made an order under r 9.21 of the Rules that the Chief Executive Officer of the ACC, representing the members of the Board of the ACC as identified in s 7B of the Act, be joined as a respondent to the proceeding: XX v Australian Crime Commission (No 2) [2015] FCA 23 (XX v ACC (No 2)). It would appear that an application has now been filed by the respondents in those proceedings similar to the application made in these proceedings.

49    Having regard to the substantive findings in relation to the applicant’s challenges to the Summons and Determination, as detailed later in these reasons, the issue concerning the proper respondent or respondents is largely academic. The application is, in any event, to be dismissed. Nevertheless, some observations should be made concerning this procedural issue, if only to determine who should pay the additional costs associated with it. It may also assist parties in future litigation concerning challenges to decisions and conduct under the Act.

50    There could be little doubt that the examiner is properly named as a respondent in these proceedings. That is because the applicant challenges the examiner’s decision and conduct in issuing the Summons. In the circumstances, it cannot be concluded that the examiner has been improperly or unnecessarily joined as a party. It may be that, in future cases, agreement can be reached between the parties that the Commonwealth be joined in lieu of the examiner on the basis that the Commonwealth could be an appropriate contradictor. That has not, however, occurred in this case. There is no basis for removing the examiner as a party.

51    In relation to the challenge to the Determination, that challenge involves a challenge to a decision or conduct of the Board. If one accepts that the Board is not a juristic entity, the proper course in such a challenge would be to join the members of the Board, in that capacity. Or, if agreement is able to be reached, an individual member of the Board, who represents all members of the Board, could be joined. That was the approach taken by Besanko J in XX v ACC (No 2). Again, it may be that in future matters the parties might reach agreement about joining the Commonwealth in lieu of the members (or a representative member) of the Board. But failing such agreement, there would appear to be no basis for the contention that the members of the Board would not be proper parties to such an application.

52    That leaves the question whether the ACC is improperly or unnecessarily joined as a party in these proceedings. That question in turn depends on whether the ACC is a juristic entity and whether any relief is sought against it.

53    There could be no question in this matter that if the members of the Board were joined (or a single representative of the Board), the ACC would not be a necessary party. That is because the persons responsible for each of the challenged decisions would be parties.

54    Even in the absence of the members of the Board being joined as parties, however, there is much to be said for the proposition that the ACC is not a proper or necessary party. Even if the ACC is a juristic entity, it did not make any of the challenged decisions. It did not make the Determination or issue the Summons. Nor did it engage in any of the challenged conduct. It is true that an injunction is sought restraining the ACC from “permitting” the examination of the applicant to occur. But such an order is unnecessary. If either the Summons or the Determination is struck down, there can be no lawful examination. The proper party to restrain in such circumstances is the examiner. Nor is it clear, in any event, what the applicant suggests that the ACC would or could do to “permit” an examination to occur or continue. The ACC, as distinct from the persons who constitute it, is not empowered to do anything in respect of investigations. In these circumstances, it is difficult to see why the ACC is a proper party.

55    In any event, whilst the ACC may not, in all the circumstances, be a necessary party, it does not follow that the interlocutory orders sought by the ACC and the examiner concerning the proper respondent should be made. The application was made at a very late stage and without notice. If the ACC was to be removed as a party, the appropriate course would be to then allow the applicant to join the members of the Board (or a responsible member) as a respondent. That course is not now available given the fact that this application was made at the last minute. There is no good reason why the applicant should be forced to join the Commonwealth as a party, in lieu of the examiner. Accordingly the application to vary the names of the respondents is refused. No order is made concerning the identity of the respondents. In the circumstances, it is appropriate to order that the ACC and the examiner pay the applicant’s costs associated with the application to vary the names of the respondents.

56    Given that the application to remove the ACC as a party is to be dismissed, it is unnecessary to decide whether the ACC is a juristic entity. There is, however, much to be said for the view that it is. Whilst the ACC is not a corporation, the terms of a number of provisions in the Act suggest that the ACC has a personality distinct from its members: cf. Williams v Hursey (1959) 103 CLR 30 at 52. For example, the ACC “is established”: see s 7 of the Act. It is hard to see how something can be established if it does not have a separate personality. The ACC also has defined functions: see s 7A of the Act. Those functions are separate and distinct from, for example, the functions of the persons who constitute the ACC, namely the CEO, the examiners and the members of the staff: see s 7(2) of the Act. The Act also speaks in terms of the ACC engaging in certain conduct, such as the conduct of special operations and investigations. The ACC subsists, and will continue to subsist, notwithstanding changes in the identity of the persons who fill the positions that constitute its members. These are all factors that support the conclusion that the ACC is a juristic entity.

Is the summons invalid?

57    The short answer to this question is “no”. There is no merit in any of the four grounds of challenge to the Summons. Before turning to the specific grounds, some general observations should be made concerning the nature of the applicant’s challenge to the Summons.

58    It may be readily accepted that the function of issuing a summons under s 28 of the Act is “a serious one”: GG v Australian Crime Commission (2010) 182 FCR 513 (GG v ACC) at [38]. A summons under s 28 of the Act authorises the invasion of rights and interests which the common law has always valued highly, including the right to silence. Accordingly, the observations by the High Court in George v Rockett (1990) 170 CLR 104 at 110-111, in the context of search warrants issued under the Crimes Act 1914 (Cth), are apposite:

Nevertheless, in construing and applying such statutes, it needs to be kept in mind that they authorize the invasion of interests which the common law has always valued highly and which, through the writ of trespass, it went to great lengths to protect. Against that background, the enactment of conditions which must be fulfilled before a search warrant can be lawfully issued and executed is to be seen as a reflection of the legislature’s concern to give a measure of protection to these interests. To insist on strict compliance with the statutory conditions governing the issue of search warrants is simply to give effect to the purpose of the legislation.

59    It does not follow, however, that judicial review of the decision to issue a summons under the Act can or should degenerate into an extreme exercise in pedantry, where even the most inconsequential slip-up or deficiency is seized upon as demonstrating a failure to comply with the statutory conditions for the issue of a summons. That, in many respects, is an accurate characterisation of some of the applicant’s grounds of challenge.

60    If the terms of the summons or the examiner’s reasons reveal some slip-up or deficiency, two questions remain. First, can it be inferred from the deficiency that there has been a failure to comply with a statutory condition for the exercise of the power? That is essentially a question of fact. Second, if there has been a failure to comply with a condition for the exercise of power, can there be discerned a legislative intention or purpose that the relevant failure necessarily invalidates the exercise of power? That is a question of construction of the statute. The existence of such a purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences of holding void every act done in breach of the relevant condition: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [91].

Ground 1 - Was there a failure to comply with section 28(1A)(a) or (b)?

61    There is no doubt that there is a discrepancy on the face of the Summons. In the operative section of the Summons, the examiner states that “being satisfied that it is reasonable in all the circumstances to do so” and “having recorded in writing the reasons for being so satisfied at 8.45 pm on 14th May 2014 … I summon you …”. The language and tense of this statement tend to suggest that the examiner recorded his reasons in writing for the issue of the Summons either before or at the same time as issuing the Summons. Yet the Summons also records that the Summons was issued at 8.50am. On the face of it, this would suggest that the Summons was issued twelve hours before the Reasons were recorded.

62    The evidence suggests, however, that this apparent discrepancy is the result of a mere typographical error in the Summons. The Reasons in fact state that they were recorded at 8.45am on 14 May 2014, five minutes before the Summons was issued. The same date and time appears in the s 28(3) Reasons and the non-disclosure Reasons.

63    The applicant submits that it should not be inferred that the reference to 8.45pm on the face of the Summons is a mere typographical error because the examiner was not called to give evidence. However, no adverse inference of the type referred to in Jones v Dunkel (1959) 101 CLR 298 should be drawn in the circumstances here. As pointed out by Jagot J in SS v Australian Crime Commission (2009) 224 FCR 439 (SS v ACC) at [47], the so-called rule in Jones v Dunkel only applies where a party is “required to explain or contradict something”. The rule cannot be used “to convert conjecture and suspicion into inference”. Here, the ACC tendered the Reasons which clearly record that the examiner recorded his reasons before issuing the Summons. The ACC was entitled to rely on this documentary evidence. It was unnecessary for the ACC to call the examiner in these circumstances. No Jones v Dunkel inference is available and, even if it was, it would not be sufficient to establish that the reasons were recorded after the issue of the Summons.

64    The applicant has failed to demonstrate that the examiner failed to comply with s 28(1A) of the Act.

65    In these circumstances, it is unnecessary to determine whether a failure to comply with s 28(1A) of the Act would invalidate a summons. There is, however, much to be said for the proposition that it would not. As pointed out by the Full Court in JJ v Board of the ACC at [51], the Act does not require reasons to be given to the recipient of the summons. Reasons are required as a mechanism for ensuring accountability in decision-making: see Barnes v Boulton (2004) 139 FCR 356 at [25]-[29]. In these circumstances, it is difficult to see why s 28 should be construed such that the validity of the Summons is dependent on compliance with s 28(1A) of the Act. The purpose of s 28(1A), ascertained from the text, subject matter and object of the Act, does not support such a construction.

66    It also follows that a typographical error in the Summons relating to the time when reasons were recorded in writing would not invalidate the Summons. There is no requirement in the Act for the Summons to include any statement concerning compliance with s 28(1A), or any requirement that the Summons state the date and time when the reasons for issuing the Summons were recorded in writing. It is difficult to see why, in these circumstances, s 28 of the Act should be construed as making the Summons invalid if an incorrect statement is included in the Summons about either of those matters.

67    It follows that the applicant has failed to demonstrate that the Summons is invalid by reason of non-compliance with s 28(1A) of the Act.

Ground 2 - Was the examiner satisfied it was reasonable in all the circumstances to issue the Summons?

68    Subsection 28(1A) of the Act provides that “[b]efore issuing a summons under subsection (1), the examiner must be satisfied that it is reasonable in all the circumstances to do so.” The text of s 28(1A), read in context and in light of the subject matter and objects of the Act, would suggest that failure to comply with this condition would invalidate the Summons.

69    The applicant submits that this condition was not complied with here. He faces, however, two significant hurdles. First, the requirement is not that it is objectively reasonable to issue the Summons. It is only necessary that the examiner is satisfied that it is. Second, the evidence here demonstrates that the examiner was so satisfied. He records that fact in the Summons itself and in the Reasons. There is nothing to cast any doubt on the examiner’s statements that he was satisfied that it was reasonable in all the circumstances to issue the Summons.

70    The applicant contends, in effect, that this matter is comparable to the circumstances in GG v ACC, where the Full Court concluded that the examiner’s reasons revealed that he incorrectly believed that he was issuing a summons in pursuance of a special operation, rather than a special investigation. This showed that the examiner had a fundamental misunderstanding of the statutory basis of his authority for issuing the summons.

71    But this case is far removed from the circumstances considered in GG v ACC. Here, the most that the applicant can point to is what he says is an error, or may be an error, in the Reasons in relation to the name of an earlier determination made by the Board on 8 March 2013. Even if the Reasons do incorrectly name that earlier determination, a full and fair reading of the Reasons and Summons make it clear that the examiner well knew that he was issuing the Summons in relation to a special investigation. It cannot be concluded that the examiner was operating under any misapprehension concerning the statutory basis of his authority to issue the Summons. Both the Summons and the Reasons clearly state that the Summons was being issued for the purposes of the special investigation set out in the Determination annexed to the Summons.

72    The applicant also points to what he submits are a number of inadequacies in the Reasons. For example, he contends that the Reasons state that the applicant will not willingly assist law enforcement. The applicant submits that there is no proper basis for this statement because there is no suggestion that any law enforcement bodies had attempted to speak with him. The Reasons also state that it is anticipated that the applicant will be able to provide information, but the applicant submits this is mere speculation. He relies on his affidavit evidence to the effect that he does not know what evidence he could give concerning serious drug offences.

73    It is unnecessary to deal with each of the criticisms that the applicant levels at the Reasons. It is sufficient to make three points. First, given the fact that the Reasons are heavily redacted as a result of public interest immunity claims by the ACC, the applicant’s criticisms of the Reasons are largely speculative. It cannot be inferred that the redacted parts of the Reasons would not support statements and conclusions expressed in the Reasons: cf. SS v ACC at [94]. It therefore cannot be concluded that the Reasons are inadequate as contended by the applicant. Second, and in any event, even if there are some inadequacies in the Reasons, that does not demonstrate that the examiner was not in fact satisfied that it was reasonable in the circumstances to issue the Summons. As was the case in SS v ACC, the applicant’s contention in this respect rises no higher than bare assertion, conjecture or suspicion. Third, the applicant’s evidence that he does not know of any evidence he could give about serious drug offences is irrelevant. The question is whether the examiner was satisfied that it was reasonable to issue the Summons. The applicant’s state of mind or belief as to whether he would be able to give any evidence concerning the matters identified in the Summons does not bear on this or any other issue in relation to the validity of the Summons.

74    Finally, the applicant submits that in arriving at the state of satisfaction required by s 28(1A) of the Act, the examiner must act reasonably and not capriciously. He contends that it may be concluded that the examiner here acted capriciously or unreasonably because the Reasons (incorporating the statement of facts and circumstances) make no specific reference to him.

75    It may be accepted that an examiner may not act capriciously in issuing a summons. However, there is no basis whatsoever for concluding that the examiner here so acted. It cannot be concluded that the Reasons and statement of facts and circumstances make no specific reference to the applicant. The applicant did not object to the tender of the redacted versions of either of these documents. The redactions reflect public interest immunity claims by the ACC. It cannot, in these circumstances, be inferred, against the ACC, that the redacted portions of these documents make no reference to the applicant or are otherwise not relevant: cf. SBEG v Commonwealth (2012) 208 FCR 235 at [68]; SS v ACC at [94]. The unredacted content of these documents does not support the applicant’s contention that the examiner acted capriciously in issuing the Summons.

76    The applicant’s contention that the examiner was not satisfied that it was reasonable to issue the Summons as required by s 28(1A) of the Act is accordingly rejected.

Ground 3 - Does the Summons fail to comply with section 28(3) of the Act?

77    It is the determination that an investigation be a special investigation that triggers the ACC’s access to coercive powers, including the power to summons persons for examination: X v ACC at [5].

78    The Summons states that the applicant is summonsed to give evidence about “serious drug offences contrary to Part 9.1 of the Criminal Code which are punishable by imprisonment for a period of three years or more.” The applicant submits, in effect, that this statement of the matters about which he was to be questioned is inadequate and fails to meet the requirement in s 28(3) of the Act.

79    That submission is rejected.

80    The requirement in s 28(3) of the Act that the matters in relation to which the recipient of the summons is to be questioned be set out in the summons is qualified in a number of ways. First, the summons need not set out the matters if the examiner is satisfied that this would prejudice the effectiveness of the special ACC operation/investigation. Second, the matters need only be set out “so far as is reasonably practicable”. Third, the summons need only set out the “general nature” of the matters.

81    Here, the examiner was apparently satisfied that it would prejudice the special investigation if the Summons contained anything beyond the general reference to drug offences contrary to the Criminal Code. The s 28(3) Reasons record that the examiner’s reasons for being so satisfied included the covert nature of the investigation and the relationship between the applicant and other persons of interest. There was a third reason, but it is redacted from the s 28(3) Reasons. The s 28(3) Reasons also appear to contain the examiner’s reasons relating to the reasonable practicality of setting out anything beyond the general reference to drug offences.

82    The applicant’s contention that the Summons does not comply with s 28(3) appears to be based on alleged deficiencies in the s 28(3) Reasons and the statement of facts in the Application. He points, for example, to the fact that the statement of facts in the Application refers to serious drug offences and money laundering, whereas the Summons only refers to serious drug offences. He submits that the statement of facts only makes the briefest of references to serious drug offences. As far as the s 28(3) Reasons go, the applicant contends that there is nothing in those reasons which goes to the question of prejudice to the investigation.

83    These submissions are both misdirected and misconceived. Putting aside, for the moment, the s 28(3) Reasons, there is no basis for concluding that what is stated in the Summons about the general nature of the matters in relation to which the applicant is to be questioned does not comply with s 28(3) of the Act. There is no doubt that the reference to serious drug offences under the Criminal Code is a very general statement of the matters about which the applicant will be questioned. But s 28(3) requires nothing more than a general statement. There is also nothing to suggest that it was “reasonably practicable” to state the matters with any further particularity. There is no basis for concluding that s 28(3) required anything more.

84    The applicant seeks to derive some assistance from the authorities concerning the statutory requirements in respect of the content of search warrants. He submits that a summons under s 28 of the Act is akin to a search warrant and that, in the case of search warrants, there is a requirement that the warrant describe the particular offences in relation to which seizure is authorised so as to enable the persons to whom they are addressed to know the “exact object” of the search: see for example Optical Prescription Spectacle Makers Pty Ltd v Withers (1987) 13 FCR 594; Parker v Churchill (1986) 9 FCR 334.

85    There is, however, no close analogy between search warrants and the statutory provisions relating to them, and a summons issued under s 28 of the Act. Most fundamentally, the terms and content of a search warrant define the scope of the search and seizure authorised by the search warrant. In the case of a summons issued under s 28 of the Act, however, it is clear that the scope of the questioning is not confined by what is stated in the summons concerning the general nature of the matters in relation to which the recipient of the summons is to be questioned. Rather, s 28(3) makes it clear that the examiner can question the person in relation to “any matter that relates to a special ACC operation/investigation.” It should be noted in this context that the summons must be accompanied by the determination of the Board in relation to the special ACC operation/investigation: s 28(2). The terms of the determination would no doubt provide the recipient of a summons with more detail concerning the likely subject-matter of the questioning. The rationale for the search warrant “exact object” test is accordingly inapplicable in the case of a s 28 summons. It follows that the search warrant cases relied on by the applicant do not support his submissions.

86    The applicant’s attack on the s 28(3) Reasons also lacks merit. Whilst the s 28(3) Reasons are brief, there is no statutory requirement that the examiner record his reasons under s 28(3). Nor is there any requirement that the examiner’s reasons under s 28(3) be provided to the person who receives the summons. In any event, contrary to the applicant’s submissions, the s 28(3) Reasons do deal with the question of prejudice. It is clear that the examiner was satisfied that further particularity in the Summons could compromise the covert nature of the investigation, particularly given the applicant’s relationship with other “persons of interest” to the investigation. Plainly there was a concern that further particularity in the Summons might ultimately lead to other persons of interest becoming aware of the nature and scope of the investigation. The applicant has not demonstrated why it was not open to the examiner to be satisfied about this risk of prejudice to the investigation. The s 28(3) Reasons, while brief, are not in any sense inadequate.

87    The applicant’s submission based on the content of the statement of facts in the Application suffer the same flaw as his other submissions based on what is or is not said in the redacted documents tendered by the ACC. It is, for example, simply not open to the applicant to contend that there is scant reference to serious drug offences in the statement of facts. The Application, including that statement of facts, is heavily redacted. There are whole pages of redactions in the tendered copy of the Application. No inference can be drawn about what is in, or not in, the redacted portions of the document.

Ground 4 - Is the Summons invalid because the Determination is void?

88    If the Determination is void there is no question that the Summons would also be void or invalid. That follows from s 28(7) of the Act, which makes it clear that the power to issue a summons under s 28(1) is only exercisable for the purposes of a special ACC operation/investigation. Likewise s 24A provides that an examiner may only conduct an examination for the purposes of a special ACC operation/investigation.

89    The question, then, is whether the Determination is, as the applicant submits, invalid.

Is the Determination invalid?

90    As outlined earlier, the applicant advances four grounds in support of the proposition that the Determination is invalid. These grounds all concern the scope of the Board’s power, and the conditions of the exercise of those powers, under s 7C of the Act.

Ground 1 – Did the Board consider whether ordinary police methods were likely to be effective?

91    The applicant contends that, before making the Determination, the Board did not consider whether ordinary police methods of investigation into the matters relating to federally relevant criminal activity were likely to be effective as required by s 7C(3) of the Act.

92    The difficulty for the applicant is that the Determination expressly states (in clause 6) that the Board did consider that issue and determined that ordinary police methods of investigation were not likely to be effective. The Board did not set out the detail of its consideration of whether ordinary police methods would be effective. Nor was it required to: cf. SS v ACC at [45]. Whilst it may be accepted that the Board was required to make a determination in relation to this issue (cf. X7 v Australian Crime Commission (2013) 248 CLR 92 at [146]), it does not follow that the Determination must include the Board’s reasons for concluding that ordinary police methods were unlikely to be effective.

93    In the face of the express statement in the Determination, the applicant makes two submissions. First, he submits that the ACC did not lead any evidence that consideration was given to whether ordinary police methods were likely to be effective. Second, he submits that the scope of the Determination is so broad that the Board could not have been satisfied that ordinary police methods were likely to be ineffective.

94    Those submissions may be dealt with shortly.

95    First, in circumstances where the Determination expressly states that the Board had given consideration to the matter in s 7C(3), it was unnecessary for the Board to call any evidence on this point. Nor can any Jones v Dunkel inference be drawn from the fact that no evidence was led on this issue. In the circumstances, the ACC was not required to explain or contradict anything in relation to this issue: SS v ACC at [47].

96    Second, for the reasons given in the context of the other grounds of challenge to the Determination, the Determination is not impermissibly broad. In any event, the breadth of the Determination says nothing about whether, contrary to the express statement in the Determination, no consideration was given to whether ordinary police methods of investigation into the matters were likely to be effective.

97    The onus is on the applicant to prove that the Board gave no consideration to whether ordinary police methods were likely to be effective. He must do so “in accordance with proper legal requirements and by inference not suspicion”: Parramatta City Council v Hale (1982) 47 LGRA 319 at 345; cited by Jagot J in relevantly analogous circumstances in SS v ACC at [37].

98    The applicant has not discharged that onus here.

Ground 2 - Does the Determination fail to comply with section 7C(4)?

99    The applicant’s second ground of challenge to the Determination focuses on the terms and scope of the description of the investigation authorised by the Determination. The central allegation is that the terms of the Determination are so broad that it amounts to an authority to investigate any criminal activity. Such an investigation, in the applicant’s submission, is not within the terms of s 7C of the Act. More specifically, the applicant submits that the Determination fails to comply with s 7C(4) of the Act because it fails to describe the general nature of the circumstances or allegations constituting the federally relevant criminal activity.

100    Before addressing the applicant’s contentions, some consideration should be given to the terms of s 7C. One of the Board’s functions under s 7C(1) is to authorise, in writing, the ACC to investigate matters relating to federally relevant criminal activity. The broad definition of “federally relevant criminal activity” is set out earlier in these reasons. If the Board determines, pursuant to s 7C(3), that an investigation into matters relating to federally relevant criminal activity is a special investigation, the determination must describe the “general nature” of the circumstances or allegations constituting the “federally relevant criminal activity”: see s 7C(4)(a) of the Act. The determination must also set out the purpose of the investigation: see s 7C(4)(c) of the Act.

101    The applicant’s arguments concerning the validity of the Determination appear to rely on the general proposition that s 7C of the Act only allows the Board to authorise a special investigation into specific and confined criminal activity. It follows, in the applicant’s submission, that the federally relevant criminal activity to be investigated must be defined in narrow or very specific terms in the Determination.

102    To the extent that the applicant advances these contentions, he is plainly wrong.

103    The only limit on the scope of the investigation that may be authorised under s 7C is that it is into “matters relating to federally relevant criminal activity”. The investigation does not have to be any more specific or confined than that. The extremely broad definition of “federally relevant criminal activity” means that the investigation may be very broad indeed. Important also, is the fact that the Determination need only describe the “general nature” of the circumstances or allegations constituting the federally relevant criminal activity. There is no need for specificity or particularity of the sort that the applicant contends is necessary.

104    It follows that the Determination does not need to identify by name suspected offenders, or detail specific offences, or specify a time frame in which the federally relevant criminal activity occurred, or identify specific conduct by specific persons, or precise transactions for investigation. These conclusions are supported by authority in relation to cognate powers conferred on the ACC’s predecessor, the National Crime Authority (NCA), by the (now repealed) National Crime Authority Act 1984 (Cth) (NCA Act).

105    Under the NCA Act, State or Commonwealth Ministers could refer “a matter” to the NCA for investigation. Sections 13(2) and 14(2) of the NCA Act, which dealt with the contents of a notice referring a matter to the NCA, were in terms not dissimilar to s 7C(4) of the Act. They provided that the notice “shall describe the general nature of the circumstances or allegations constituting the relevant criminal activity.” In National Crime Authority v A1 (1997) 75 FCR 274 (NCA v Al), the applicant challenged a reference to the NCA on grounds that included the lack of specificity of the notice. That challenge was upheld by the trial judge, but overturned by majority on appeal.

106    The majority (von Doussa and Sundberg JJ) held that it was not necessary for the notice to specify a time frame in relation to the relevant criminal activity. One of the reasons for this was because (at 289):

... the NCA engages in investigations unlike those conducted by the ordinary police forces. It does not necessarily proceed from a discovered offence. The inquiry may be as to whether any relevant offences have been committed or are being committed. Putting aside possible current offences, there is no reason why an investigation into possible past offences should be limited as to time. The imposition of time-frame might quite arbitrarily prevent the investigation or discovery of certain crimes. The second related consideration concerns issues of relevance in the sense earlier described. It is an investigative power which is under consideration, and it is not possible to define a priori the limits of an investigation which might properly be made. The power should not be narrowly confined … The third consideration is that the information available may not permit the specification of a time-frame.

107    The same could be said about the ACC and special investigations under the Act.

108    The majority in NCA v A1 also rejected the contention that the notice had to identify specific persons and specific offences. Their Honours said (at 289-290):

… in our view a reference will be valid which states that the general nature of the allegations is that unspecified persons may have engaged in or be engaging in one or more of a list of activities which are relevant offences. For example, the Minister might become aware of a vast increase in the amount of heroin being trafficked in Sydney. He could refer to the NCA for investigation the question whether the offence of heroin importation has been or is being committed, and if so by whom. This would be a matter relating to a relevant criminal activity. It would be a circumstance which implied that the illegal importation of heroin had occurred or was occurring. Having regard to the nature of the matter referred, it may not be possible for the Minister to do more in purported compliance with s 13(2)(a) than to say that the general nature of the circumstances is that unknown persons may have engaged or be engaging in the activity of illegally importing heroin into Australia. Since it is not necessary, in order for a reference to be valid, for it to identify offenders at all, one which purports to do this, but does so in a limited way, by referring to clubs which have been identified only to the Minister, cannot thereby be rendered invalid.

109    The same can be said about the content of a determination under s 7C(4) of the Act.

110    The majority also considered that the very nature of an NCA investigation told against the need for specificity in the notice. Their Honours said (at 294):

An NCA investigation starts with no specific issues or charges. It has only its terms of reference, which may be extremely wide. Its function is inquisitorial, not adversarial. It must pursue lines of inquiry, and in doing so may find that other lines of inquiry appear profitable … The NCA should not be regarded as outside its charter so long as it bona fide seeks to establish a relevant connection between certain facts and the subject matter of the reference, and that connection is one that is reasonably capable of being related to the purpose for which the power is conferred … Because the NCA is an investigative body, it must necessarily embark on a fishing expedition … Given the nature of an NCA investigation, to say that it is a function of the notice of reference to enable the NCA to ascertain the extent or limits of its powers does not mean that a notice must possess the particularity insisted upon by the primary judge.

111    The same can be said of an ACC investigation.

112    The majority in NCA v A1 concluded as follows (at 295):

The contention that to be valid a notice must identify the persons whose conduct is in question, describe that conduct, state when or between what dates the conduct occurred, and state in a detailed way (that is, not broadly) the alleged criminal activities, cannot be correct. A notice which included all those matters would contain a specific, and not a general, description of the circumstances or allegations constituting the relevant criminal activity. Section 13(2)(a) shows that Parliament did not intend that a notice must contain that degree of specificity.

113    The same can be said about the requirement under s 7C(4) of the Act.

114    The applicant submits, in effect, that the Determination should be construed in the context of provisions of the Act that provide for a degree of oversight of the actions of the Board. Section 8 of the Act establishes an Inter-Governmental Committee and s 9 provides that one of the functions of the Inter-Governmental Committee is to monitor generally the work of the ACC and the Board. Section 18 of the Act provides that the Board is subject to ministerial direction. The applicant contends, in effect, that if a broad determination is permitted, it would remove this oversight and direction of the Board.

115    That submission is rejected.

116    The fact that the statutory scheme includes some general oversight of the Board does not mean that the otherwise broad power of the Board to determine that an investigation is a special investigation should be confined or narrowly construed. Nor does it follow that a s 7C determination must be expressed in narrow or confined terms. No doubt if the Inter-Governmental Committee formed the view that a particular determination was inappropriately broad, it would take some action in relation to it.

117    Turning then to the terms of the Determination, it authorised the ACC to investigate “specified criminal activity” (see clause 4 of the Determination). The term “specified criminal activity” is defined in clause 3 to mean “the federally relevant criminal activity described in Schedule 1.”

118    Clause 2 of Schedule 1 contains a description of the “general nature of the circumstances constituting federally relevant criminal activity” which the Determination authorised the ACC to investigate. The circumstances outlined in clause 2 all relate to particular characteristics of criminal activity engaged in by “HRCTs.” The acronym HRCT is a reference to “highest risk criminal targets”. That expression is defined in clause 3 as meaning entities “which an authorised ACC officer has reasonable grounds for suspecting” may have a number of specified attributes. It includes persons who are identified on the National Criminal Target List (NCTL), which is a list of criminal “targets” compiled from intelligence gathered by the ACC and its partners. Entities are included in this list if they are assessed as having certain attributes which mean that they pose a particular threat to the community.

119    Clause 3 of Schedule 1 to the Determination sets out the general nature of the allegations constituting federally relevant criminal activity. In summary, the allegations in clause 3 mostly involve activities by HRCTs that may fall within a long list of specified offences under a number of Commonwealth statutes, including: the Criminal Code, the Crimes Act 1914 (Cth), the Customs Act 1901 (Cth), the Corporations Act 2001 (Cth), the Financial Transaction Reports Act 1988 (Cth), and the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth). The description of the allegations also includes “incidental offences” that may be connected with the commission of the offences under the listed Commonwealth statutes and “other unlawful activities that are related to or connected with these activities [the activities that may constitute offences under the various Commonwealth statutes] and that involve relevant offences against a law of a State that have a federal aspect.”

120    There could be no doubt that the scope of the investigation authorised by the Determination is extremely broad. It does not, however, follow that the description of the general nature of the circumstances and allegations in clauses 2 and 3 of Schedule 1 does not satisfy the requirement in s 7C(4)(a) of the Act.

121    The applicant’s submission that the Determination authorises an investigation into any criminal activity is wrong. Whilst the circumstances and activities described in clauses 2 and 3 of Schedule 1 no doubt cover a very broad range of criminal activities, the description is not unlimited. The criminal activities must be engaged in by entities that have particular characteristics and must be related to the commission of certain serious Commonwealth offences, or offences related to or connected with those offences. To the extent that those related or connected offences may constitute offences against the law of a State, they must have a federal aspect. Whilst the expression “federal aspect” is not defined in the Determination, because the Determination is an instrument (see X v ACC at [32]), expressions used in it have the same meaning as in the Act: see s 46(1)(b) of the Acts Interpretation Act 1901 (Cth) (Interpretation Act).

122    The applicant also contends that the description in the Determination of the circumstances and allegations constituting the federally relevant criminal activity fails to comply with s 7C(4)(a) because the allegations and circumstances focus on the activities of HRCTs. Whether or not an entity is an HRCT depends on whether a specified ACC officer has reasonable grounds to suspect that the entity may have various attributes or characteristics or whether the entity is on a list (the NCTL) compiled by the ACC. In the applicant’s submission, this means that ACC officers effectively determine the scope of the special investigation.

123    It is unclear exactly how or why this is said to mean that the description of the circumstances or allegations in the Determination fails to satisfy the requirement in s 7C(4)(a) of the Act. As already indicated, a determination under s 7C can be valid even if it does not identify any suspected offenders at all, or only identifies them in a very general way: NCA v A1 at 289-290. If follows that a determination that describes suspected offenders in a limited way, for example that they possess certain specified characteristics or attributes, is not invalid. That is the case even if the question whether persons or entities possess those attributes is left up to the judgment of officers of the ACC. That is all the more so when that judgment is required to be on objectively reasonable grounds.

124    It accordingly does not follow that the Determination authorised the ACC to investigate “all persons for all purposes”, as submitted by the applicant. Nor does it follow that the description of the circumstances and allegations in the Determination fails to comply with s 7C(4)(a) of the Act.

125    It should also be noted that, whilst not clearly articulated as one of the grounds of challenge to the Determination, in his submissions the applicant also appeared to contend that the Determination fails to comply with s 7C(4)(c), which requires the determination to set out the purpose of the investigation. The basis of this contention is, however, unclear. Clause 9 of the Determination clearly sets out the purposes of the investigation. It is unclear exactly how or why this description of the purpose is said to be deficient or defective. The most that can be said is that it appears that the applicant submits that clause 9 is expressed in overly broad terms. That submission is rejected. Whilst the purpose is expressed in broad terms, there is nothing in s 7C to suggest that a special investigation cannot have broad purposes of the sort outlined in clause 9.

126    The final submission advanced by the applicant in relation to this ground concerns the use in the Determination of the expression “federally relevant criminal activity”. That submission is more conveniently dealt with in the context of the following ground. Suffice it to say here that the use of this expression does not mean that the Determination is impermissibly broad or that there has been non-compliance with s 7C(4).

Ground 3 - Is the Determination outside the scope of section 7C?

127    Aside from the more general submissions concerning the breadth of the Determination, which have been dealt with in the context of ground 2, the applicant submits that the Determination exceeds the scope of s 7C. That is because, in the applicant’s submission, the scope of the investigation authorised by the Determination is not restricted to “federally relevant criminal activity” as defined in the Act. The applicant’s argument, so far as it is able to be understood, is that whilst, in terms, the Determination is limited to “federally relevant criminal activity”, the Determination sets up its own definition of that expression, which is not the same as the definition in the Act. The definition in the Determination is said to be found within the definition in clause 3 of the expression “specified criminal activity”. That definition refers to “federally relevant criminal activity described in Schedule 1.” The applicant then points to paragraphs 3(d) and (h) of Schedule 1, which refer to offences involving violence and theft. In the applicant’s submission, these offences do not fall within the definition of “federally relevant criminal activity” in s 4 of the Act.

128    This argument has no merit. As earlier indicated, the Determination is an instrument for the purposes of the Interpretation Act: see X v ACC at [32]. Section 46(1)(b) of the Interpretation Act provides that expressions used in instruments have the same meaning as in the enabling legislation. It follows that when the Determination uses the expression “federally relevant criminal activity”, that expression bears its defined meaning in the Act. It follows that the scope of the investigation is limited to federally relevant criminal activity and falls within the scope of s 7C.

129    In any event, even putting aside s 46 of the Interpretation Act, the applicant’s construction of the Determination is erroneous. The Determination should be construed in a practical and realistic manner: cf. Salahuddin v Minister for Immigration and Border Protection (2013) 140 ALD 1 at [22]. When read in this way, it is clear that the Determination is limited to the investigation of matters that fall within the meaning of “federally relevant criminal activity” as defined in the Act. Read fairly, the Determination does not set up its own definition of “federally relevant criminal activity”.

130    The applicant’s contention is that the Determination should be read as if it defines federally relevant criminal activity as all of the activity described in Schedule 1. That is said to flow from the definition of “specified criminal activity” in clause 3. However, the definition of “specified criminal activity” in clause 3 does not define federally relevant criminal activity by reference to Schedule 1. Rather, it defines “specified criminal activity” as being the federally relevant criminal activity “described” in Schedule 1. That does not amount to a definition of federally relevant criminal activity. When the expression “federally relevant criminal activity” is used in both clause 3 and Schedule 1, it can only sensibly be read as engaging the expression as defined in the Act.

131    What that means is that the references in clauses 3(d) and (h) of Schedule 1 to offences of violence and theft must be read as meaning offences of violence and theft that fall, or are capable of falling, within the definition of federally relevant criminal activity in s 4 of the Act. There are some offences involving violence and theft which are Commonwealth offences and would therefore fall within paragraph 4(a) of the definition of federally relevant criminal activity. If the offences involving violence or theft are State offences, they can only constitute federally relevant criminal activity if they have a “federal aspect” as defined in s 4A of the Act. It is not hard to imagine circumstances where State offences involving violence or theft may fall within s 4A of the Act.

132    This construction of the Determination is also supported, if not compelled by, s 46 of the Interpretation Act. As already indicated, s 46(1)(b) provides that expressions used in an instrument have the same meaning as in the enabling legislation. Section 46(1)(c) also provides that an instrument is to be read and construed subject to the enabling legislation and so as not to exceed the power of the authority. What that means is that the Determination is to be read so as not to exceed the power in s 7C of the Act. In practical terms, that means that the references to offences of violence and theft must be read as meaning either Commonwealth offences involving violence and theft, or State offences involving violence and theft that have a federal aspect.

133    It follows that the Determination is not ultra vires. It is within the scope of s 7C because it is limited to federally relevant criminal activity.

134    It should perhaps also be observed that none of what has been said about the construction of the Determination should be taken as an endorsement of the drafting style or technique employed in the Determination. The Determination, and in particular Schedule 1, is lengthy, complex and somewhat convoluted. No doubt Schedule 1 could have been drafted in more clear and concise terms. But an instrument such as the Determination cannot be struck down in judicial review proceedings simply because it is poorly drafted. The instrument here was within power and did not fail to meet or comply with any of the requirements in s 7C.

Ground 4 - Does the instrument impermissibly delegate power to the ACC?

135    This ground of challenge to the Determination focuses on the definition of “highest risk criminal targets” or HRCTs. This definition was considered earlier in the context of ground 2. In short, HRCTs are entities which an authorised ACC officer has reasonable grounds for suspecting have one or more of a number of specified characteristics or attributes. The applicant submits that because the circumstances and allegations described in Schedule 1 all relate to activities of HRCTs, and because ACC officers decide whether an entity is an HRCT, the result is that the Determination amounts to an impermissible delegation or sub-delegation of the power under s 7C of the Act by the Board to ACC officers.

136    This ground has no merit and is rejected.

137    The determination that the investigation described in the Determination is a special investigation was made by the Board. It was not delegated or sub-delegated to any ACC officer or officers.

138    The fact that the Board determined that the circumstances and allegations constituting the federally relevant criminal activity to be investigated were described in such a way that some judgment was called for by certain defined ACC officers does not mean that the determination power, or any part of it, was delegated to those ACC officers. All that it means is that the ACC officers have some role in determining the scope of the federally relevant criminal activity to be investigated. That role is to determine whether there are reasonable grounds for suspecting that particular entities have certain attributes that make them a particular risk to the Australian community. If there are reasonable grounds for suspecting that the entities possess those attributes, their activities may be covered by the investigation, but only if the activities meet or fall within the other described circumstances and allegations. This does not alter the fact that the Board made the s 7C determination. The Board did not delegate that exercise of power.

139    There is nothing in s 7C, or the scheme of the Act in relation to special investigations, which precludes the Board from determining that an investigation described in such terms is a special investigation. So long as the investigation involves circumstances or allegations constituting federally relevant criminal activity, the determination is within power. For the reasons already given, a determination by the Board described in such terms also does not fail to comply with s 7C(4)(a) of the Act.

the constitutional point

140    For the reasons already given, the constitutional point raised by the applicant is elusive if not illusory. No constitutional challenge is made to the definition of “federally relevant criminal activity” which is the lynchpin of both the s 7C determination power and the s 28 summons power. That is not surprising. The first limb of the definition, which involves Commonwealth offences, is plainly constitutionally valid. It is “supported by as many heads of power as from time to time have been exercised by the Parliament to create offences against Commonwealth laws”: R v Hughes (2000) 202 CLR 535 at [40]. The constitutional validity of the second limb, which relates to State offences with a “federal aspect”, was also confirmed in S v Australian Crime Commission (2006) 149 FCR 361.

141    The applicant’s argument, so far as it is able to be comprehended, hinges on the proposition that the Determination is not confined to federally relevant criminal activity as required by ss 7C(1)(c) and 7C(3) of the Act. The applicant’s primary argument is that this means that the Determination is ultra vires. The applicant submits, however, that if s 7C permits the making of a determination that is not limited to federally relevant criminal activity (as he submits is the case with the Determination), it is constitutionally invalid. The same could be said in relation to the summons power in s 28 of the Act.

142    The constitutional argument does not, however, even get to first base. That is because, for the reasons already given, the Determination, on its proper construction, is restricted or limited to the investigation of federally relevant criminal activity. It does not exceed the power in s 7C. Accordingly, no question of s 7C authorising special investigations into matters not limited to federally relevant criminal activity arises in the circumstances of this case. No question concerning the constitutional validity of s 7C or any other provision of the Act arises.

143    To the extent that the applicant’s s 78B Judiciary Act notices raise any issues or arguments beyond the arguments earlier identified, those arguments were not pressed or pursued by the applicant.

Disposition

144    The applicant has not made good his challenge to either the Summons or the Determination. The application is dismissed. The applicant should pay the costs of the respondents, save for the costs relating to the interlocutory application by the respondents to vary the names of the respondents. The respondents should pay the costs of and associated with that interlocutory application.

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Associate:

Dated:    26 June 2015