FEDERAL COURT OF AUSTRALIA

XX v Australian Crime Commission (No 3) [2016] FCA 437

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    Liberty to apply on the issue of costs.

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

REASONS FOR JUDGMENT

PERRY J:

1.    INTRODUCTION

1    The applicant seeks judicial review under ss 5 and 6 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) and s 39B of the Judiciary Act 1903 (Cth) of a summons (the summons) to appear before an examiner issued by the Australian Crime Commission (the ACC). The summons was issued for the purposes of a special ACC investigation purportedly pursuant to s 28(1) of the Australian Crime Commission Act 2002 (Cth) (the ACC Act).

2    It is not in issue that the power to issue the summons and, therefore, the validity of the summons turns upon the validity of the ACC Board’s determination that the investigation is a “special investigation” under s 7C(3) of the ACC Act, namely, the Australian Crime Commission Special Investigation Authorisation and Determination (Highest Risk Criminal Targets No 2) 2013 (the Determination). Rather, the applicant alleges that the Determination and, as a result, the summons, are invalid on the grounds that the Board failed to consider the statutory criteria for the making of the Determination in s 7C(3) and (4) of the ACC Act and that the exercise of the power to make the Determination was unreasonable. Ultimately no ground of invalidity of the summons was pressed aside from the question of the validity of the Determination. Nor was any constitutional issue pressed.

3    The applicant accepts that in order to succeed on this application, she or he must satisfy this Court that the decision of Wigney J in XCIV v Australian Crime Commission [2015] FCA 586; (2015) 234 FCR 274 (XCIV) upholding the validity of the Determination is “plainly wrong”, save for the unreasonableness ground which the parties agree was not an issue raised in XCIV.

4    For the reasons set out below, I do not consider that the decision in XCIV is clearly wrong. To the contrary, I agree with that decision. Nor do I consider that the decision to make the Determination is unreasonable.

2.    LEGISLATIVE FRAMEWORK

2.1    Background to the ACC Act

5    The ACC is established by s 7(1) of the ACC Act. It replaced the National Crime Authority (NCA) established by the National Crime Authority Act 1984 (Cth) (NCA Act), the Office of Strategic Crime Assessments and the Australian Bureau of Criminal Intelligence, the intention being to enhance the capacity for the Australian Government to counteract serious and organised crime. As Finkelstein J explained in AA Pty Limited v Australian Crime Commission [2005] FCA 1178; (2005) 219 ALR 666 at 670, in enacting the ACC Act:

The Federal Government had two major concerns. Complex criminal activity engaged in by skilled criminal syndicates was on the rise. “The globalisation of markets had brought with it the globalisation of crime” is how the Attorney-General put it on the second reading of the Bill... There was also the risk of terrorism.… The new body was designed to play a pivotal role in national law enforcement operations to combat such threats in conjunction with other State and Federal (including Territory) agencies, especially state and federal police forces.

(citations omitted)

6    Similarly, while the Full Court allowed an appeal against the decision of Finkelstein J on issues not presently relevant, the Court also observed that the ACC “was formed to enhance the capacity of the Australian governments to counteract complex criminal activity engaged in by organised or sophisticated criminal groups and to address the heightened risk of terrorism…”: Australian Crime Commission v AA Pty Ltd [2006] FCAFC 30; (2006) 149 FCR 540 at [16].

2.2    The ACC’s function of investigating matters relating to federally relevant criminal activity

7    The functions of the ACC under s 7A of the ACC Act are essentially directed towards the gathering, investigation and dissemination of criminal information and intelligence. Relevantly for present purposes, they include:

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

…

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

8     “Federally relevant criminal activity” is defined in s 4(1) to mean:

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

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

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

(ii)    has a federal aspect.

9    The circumstances in which a crime has a “federal aspect” are defined in s 4A of the ACC Act and include state offences which the Commonwealth could validly have enacted and state offences which are incidental to an investigation into a criminal activity relating to an offence against a Commonwealth or Territory law. It is apparent in my view therefore from the definition of “federal aspect” that Parliament intended to ensure with respect to those kinds of criminal activities which may constitute “federally relevant criminal activity” that the ACC’s investigation powers under the ACC Act would be as broadly defined as the Commonwealth’s legislative powers would permit. In other words, the investigation powers would be available irrespective of whether the offences were State, Territory or Commonwealth offences to the extent permissible under the Constitution.

10    “Relevant criminal activity”, in turn, 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”, while “relevant crime” means, relevantly, “serious and organised crime” (s 4(1), ACC Act). “Serious and organised crime” means, subject to exclusions not presently applicable, an offence:

(a)    that involves 2 or more offenders and substantial planning and organisation; and

(b)    that involves, or is of a kind that ordinarily involves, the use of sophisticated methods and techniques; and

(c)    that is committed, or is of a kind that is ordinarily committed, in conjunction with other offences of a like kind; and

(d)    that is a serious offence, an offence against Subdivision B or C of Division 471, or D or F of Division 474, of the Criminal Code, an offence of a kind prescribed by the regulations or an offence that involves any of the following:

(i)    theft

(ii)    fraud;

(iii)    tax evasion;

(iv)    money laundering;

(v)    currency violations;

(vi)    illegal drug dealings;

(vii)    illegal gambling;

(viii)    obtaining financial benefit by vice engaged in by others;

(ix)    extortion;

(x)    violence;

(xi)    bribery or corruption of, or by, an officer of the Commonwealth, an officer of a State or an officer of a Territory;

(xii)    perverting the course of justice;

(xiii)    bankruptcy and company violations;

(xiv)    harbouring of criminals;

(xv)    forging of passports;

(xvi)    firearms;

(xvii)    armament dealings;

(xviii)    illegal importation or exportation of fauna into or out of Australia;

(xix)    cybercrime;

(xx)    matters of the same general nature as one or more of the matters listed above; and

(da)    that is:

(i)    punishable by imprisonment for a period of 3 years or more; or

(ii)    a serious offence;

11    It is apparent from the use of the word “and” at the end of paragraphs (a), (b) and (c) of the definition of “serious and organised crime” that an offence will fall within the definition only if it has all of the attributes set out in paragraphs (a) to (d) inclusive. It is also apparent that Parliament has endeavoured in paragraphs (a) to (c) to identify the way in which those engaging in serious and organised crime might operate and in paragraph (d) to list certain kinds of offences in which those involved in serious and organised crime may engage while leaving open the possibility that the list of offences may be expanded by regulation.

2.3    The Board of the ACC and authorisation of investigations by the ACC

12    The Board of the ACC is established by s 7B and is constituted by the CEO and the heads of various state and federal government agencies, including the Commissioner of the Australian Federal Police (AFP), the Director-General of Security, and the Commissioner or head of each of the State and Territory police forces (s 7B(2), ACC Act). Pursuant to s 7C of the ACC Act, the Board’s functions include:

(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 investigation is a special investigation;

13    The term “intelligence operation” is defined to mean “an operation that is primarily directed towards the collection, correlation, analysis or dissemination of criminal information and intelligence relating to federally relevant criminal activity, but that may involve the investigation of matters relating to federally relevant criminal activity.” (s 4(1), ACC Act).

14    A “special ACC operation/investigation” is defined in s 4(1) to mean:

(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.

15    The Board’s power to determine that an investigation is a special investigation is conferred by s 7C(3) of the ACC Act subject to certain conditions. First, under s 7C(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.

16    The reference to “effective” in s 7C(3) has been interpreted as meaning “effective to permit the laying of charges against offenders”: X7 v Australian Crime Commission [2013] HCA 29; (2013) 248 CLR 92 (X7) at [146] (Hayne and Bell JJ, with whom Kiefel J agreed).

17    Secondly, s 7C(4) (quoted at [49] below) requires that a determination under s 7C(2) or (3) contain a description of the scope and purpose of the investigation.

18    Thirdly, the Board cannot determine that an intelligence operation/investigation is a special intelligence operation/investigation unless, exceptionally, at least nine Board members (including at least two Commonwealth Board members) vote in favour of making the determination (s 7G(4)).

19    The authorisation by the Board of a “special ACC operation/investigation” in accordance with its functions under s 7C(1)(c)-(d) of the ACC Act is, as the applicant contends, a necessary precondition for the exercise of certain coercive powers conferred by the ACC Act, including, relevantly, the power vested in an examiner under s 28 to summon a person to give evidence and produce documents at an examination. Consistently with this, an examiner may conduct an examination only for the purposes of a “special ACC operation/investigation”, as the applicant rightly stressed (s 24, ACC Act). Under s 30 of the Act, a witness is required to answer questions or produce documents even if the witness incriminates herself or himself by doing so. However, where the witness claims that the answer or document may incriminate her or him, s 30(5) provides that the answer or document is not admissible in evidence against the witness in criminal proceedings or proceedings for the imposition of a penalty: see also s 30(4).

20    As I held in LHRC v Deputy Commissioner of Taxation (No 3) [2015] FCA 52; (2015) 326 ALR 77 at [38], the Explanatory Memorandum to the Australian Crime Commission Establishment Bill 2002 (the ACC Explanatory Memorandum 2002) (at p. 9) highlighted the importance of the conditions on the exercise of the power to determine that an investigation is a “special investigation”, explaining that the threshold test contained relevantly in s 7C(3) “provide[s] an important safeguard on the exercise of coercive powers under the [ACC] Act”, while the detail required by s 7C(4) “sets the parameters for the operation of investigation and represents another important safeguard on the exercise of coercive powers under the [ACC] Act.”

3.    RELEVANT FACTS

21    There is no dispute concerning the relevant facts.

3.1    The summons

22    On 31 March 2014, the summons was issued by the second respondent, Mr Anderson, in his capacity as an examiner appointed under s 46B of the ACC Act requiring the applicant to appear before an examiner. The summons relevantly states that:

Pursuant to subsection 28(1) of the [ACC 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 11.01 am on 31 March 2014

3.    I summon you:

a.    to appear at 10:00 am on Thursday, 10 April 2014 before an Examiner at an examination at the Australian Crime Commission, Floor 11, East, Commonwealth Centre, 55 Currie St, ADELAIDE 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; and

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

(emphasis in the original)

23    The summons further states that “[p]ursuant to s 28(2) of the [ACC] Act, a copy of the Australian Crime Commission Board’s determination that the investigation is a special investigation is attached…”. Annexed to the summons is an instrument purportedly made by the Board under s 7C of the ACC Act by resolution on 4 September 2013, being the Determination earlier referred to.

3.2    The Determination

24    The Board of the ACC made the Determination on 4 September 2013. By cl 4 of the Determination, the Board purports to authorise the ACC “to investigate specified criminal activity until 30 June 2016” pursuant to ss 7C(1)(c) and 7A(c) of the ACC Act. Clause 5 of the Determination requests that the ACC provide a report to the Board on the outcomes of the investigation at or before the first Board meeting after 30 June 2016.

25    As to the criteria for making the Determination, cl 6 of the Determination states:

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.

26    Clause 7 in turn states that “[t]he general nature of the circumstances or allegations constituting specified criminal activity are set out in Schedule 1.” “Specified criminal activity” is defined by cl 3 of the Determination to mean “the federally relevant criminal activity described in Schedule 1” and by cl 8 includes offences against a law of the Commonwealth, State or Territory.

27    The purposes of the investigation are set out in cl 9 which provides:

The purposes of the investigation are:

(a)    to collect and analyse criminal information and intelligence relating to specified criminal activity by HRCTs and associated entities, to disseminate that information and intelligence in accordance with the Act and to report to the Board; and

(b)    to identify entities involved in specified criminal activity by HRCTs, to collect evidence about that activity, and to facilitate the apprehension, and if appropriate, the prosecution of such entities (including through the referral of information to other bodies); and

(c)    to reduce the incidence and effect of specified criminal activity by HRCTs (including any adverse impacts on Australia’s national interests) including through:-

(i)    disruption and prevention;

(ii)    making the markets, sectors, infrastructure and capabilities exploited by HRCTs more resilient to HRCT activity; and

(d)    to make appropriate recommendations to the Board and other bodies about reform of:

(i)    the law relating to relevant offences;

(ii)    relevant administrative practices; and

(iii)    the administration of the courts in relation to trials of relevant offences.

28    The expression “Highest risk criminal targets” or “HRCTs” to which cl 9 refers is defined in cl 3 of the Determination to mean:

…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 intimidation of witnesses and the use of violence;

(emphasis added)

29    The use of the word “and” as highlighted above makes it plain, in my view, that an HRCT is an entity in respect of which an authorised ACC officer must have reasonable grounds for suspecting that all of the criteria in subclauses (a) to (c) are met.

30    Schedule 1 to the Determination, which is referred to in cl 7 and in the definition of “specified criminal activity” in cl 3, is entitled “Authorised investigation”. That Schedule relevantly provides as follows:

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)    HCRTs 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.

(Notes and footnotes omitted)

4.    CONSIDERATION

4.1    The issues

31    While the originating application and third statement of claim raised many grounds, ultimately the applicant pressed only the following grounds in support of their application:

(1)    the Board of the ACC failed to consider whether ordinary police methods of investigation are effective as required under s 7C(3) of the ACC Act;

(2)    the determination failed to comply with the degree of specificity about the investigation required by s 7C(4) of the ACC Act;

(3)    the determination failed to be made consistently with the policy and objects of the ACC Act; and

(4)    the Board acted unreasonably in determining pursuant to s 7C(3) of the ACC Act that ordinary police methods of investigation into the matters relating to federally relevant criminal activity the subject of the special investigation were likely to be ineffective.

32    As will become apparent, there is a high degree of overlap between these grounds.

33    The onus of establishing these grounds falls within the principles enunciated by Hely J in Williams v Keelty [2001] FCA 1301; (2001) 111 FCR 175. In that case, Hely J said at [235] and [236] with respect to the onus of proving that warrants were lawfully issued that:

The applicants contend that the onus of proving the warrants were lawfully issued falls upon ASIC. Reliance was placed upon the decision of Heerey J in Challenge Plastics Pty Ltd v Collector of Customs (Vic) (No 2) (1994) 49 FCR 541. Heerey J said (at 543):

‘Generally speaking, administrative acts are presumed to be valid and the onus is on the party seeking to challenge them: … However, here we have a rather special situation of an entry on premises and removal of documents without the consent of the owner of the premises and documents. Without lawful justification, such conduct would constitute a trespass. In substance, this proceeding has been concerned with the legal justification advanced by the respondent for that action. Where the exercise of executive discretion interferes with liberty or property rights, once the person affected has shown a prima facie case the burden of justifying the legality of the decision is on the executive: R v Secretary of State for Home Department; Ex parte Khawaja [1984] AC 74 at 112 per Lord Scarman.’

I agree that once the applicants show an invasion of their property or premises by ASIC, the onus is upon ASIC to adduce evidence, and to persuade the trier of fact that its invasion of what would otherwise be the applicants’ rights was undertaken with lawful justification. But ASIC discharges that onus by the production of the search warrants, and by demonstrating that its actions were within the scope of the authority conferred by the warrants. If the applicants wish to challenge the issue of the warrants on administrative law grounds, then the onus is on them to make good that challenge. This result is consistent with the decision of the Full Court in Malubel [Pty Ltd] v Elder [(1998) 88 FCR 242] at 249 where the Court held that the issue of a warrant is an administrative act, and steps taken pursuant to it may be presumed to be valid unless and until the warrant is set aside. The observations of Gummow J in Ousley v The Queen [(1997) 192 CLR 69] at 130-131 are to like effect.

34    This approach has been approved, for example, in Kennedy v Baker [2004] FCA 562; (2004) 135 FCR 520 at [85] and [86] (Branson J), X v Australian Crime Commission [2004] FCA 1475; (2004) 139 FCR 413 at [22] (Finn J), and Egglishaw v Australian Crime Commission [2006] FCA 819; (2009) 230 ALR 254 at [20] (Sundberg J).

35    Equally, the exercise of discretion under s 28 of the ACC Act to issue a summons interferes with the liberty and/or property of the recipient and requires therefore lawful justification. The Determination was provided to the applicant in accordance with s 28(2) of the ACC Act as the basis for the summons and there is no longer any suggestion made by the applicant that, if the Determination is valid, the summons falls outside the scope of the Determination. As such, in line with these principles, the onus lies upon the applicant to prove that there has been non-compliance with the requirements of the ACC Act or that the decision to make the Determination was unreasonable in a legal sense.

36    Added to this, the issues raised fall to be considered in circumstances where a single judge of this Court in XCIV has rejected a challenge to the Determination on grounds which are in effect identical to those argued here aside from the unreasonableness argument, namely that:

(1)    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 relying (relevantly) on the broad wording of the Determination;

(2)    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 because the question whether an activity may be a “specified criminal activity” 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 HRCT;

(3)    related to (2) above, the scope of the Determination is so broad that it could not be considered to be a proper exercise of power under s 7C(4) - this ground again hinged on the alleged breadth of the defined term “specified criminal activity”, the applicant contending that the terms of the Determination are so broad that it amounts to an inquiry into any possible criminal activity; and

(4)    the Determination amounts to an impermissible delegation of the Board’s power to make a s 7C determination to authorised ACC officers by reason of the definition of HRCT in clause 3.

37    Each of these grounds was rejected by Wigney J in XCIV. It follows that, aside from the unreasonableness ground, the applicant must demonstrate that the decision of Wigney J was “plainly wrong” in concluding that the Determination (and therefore the summons issued by reference to it) was valid. That is not a conclusion lightly to be reached. As Greenwood J explained in BHP Billiton Iron Ore Pty Ltd v National Competition Council [2007] FCAFC 157; (2007) 162 FCR 234 at [83]-[84]:

The circumstances in which a judge in the exercise of the Court’s original jurisdiction might find a decision of a single judge of the Court to be ‘plainly wrong’ should be approached with real and deliberative caution and would generally involve that class of case where for one reason or another there is transparent error such as the consideration of an incorrect statutory instrument in the resolution of the controversy; consideration of a provision of a statute in a form not enacted at the relevant date of the events or a failure to consider a provision of an Act relevant to the disposition of the cause, thus causing the analysis to fall into error; a failure to apply having regard to the issues raised by the controversy, a binding decision of a Full Court of this Court or the High Court; a failure to apply a decision of a Full Court of this Court, an intermediate Court of Appeal of another jurisdiction or an authority of the High Court expressing a clear persuasive emphasis of opinion in favour of a particular conclusion (particularly concerning legislation of the Commonwealth Parliament); or some other circumstance that has caused a dispositive adjudication of the controversy to miscarry.

That minds might differ on a question is not a foundation for a conclusion that a decision supported by exposed reasons for judgment after full argument, is plainly wrong.

38    The extent of the difficulty confronted by the applicant in seeking to demonstrate that an earlier decision is “plainly wrong” is evident from the observations of Weinberg J in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2; (2006) 150 FCR 214. Specifically at 250 [148] his Honour stated (in the context of a Full Court determining whether an earlier Full Court decision was “plainly wrong”) that:

The word “plainly” does more than simply add emphasis. It suggests that the error must be manifest or, if it does not rise to that level, at least capable of being easily demonstrated. In a sense, the error must be so clear as to enable a later court to say the point is not reasonably arguable.

4.2    Alleged failure to consider whether ordinary police methods of investigation are likely to be effective (s 7C(3), ACC Act)

39    The applicant submits that XCIV was plainly wrong in rejecting the proposition that the Board had failed to comply with the precondition in s 7C(3) on the ground that the decision is inconsistent with the construction of s 7C(3) adopted by the High Court in X7. Specifically, the applicant relies upon the reasons of Hayne and Bell JJ in X7 at [146]-[147] where their Honours held that:

It is to be recalled that the examination powers which are in issue in this case are powers that relate expressly to a "special ACC operation/investigation", which, in the context of this case, refers to "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". Although s 7C(3) provides that a "special investigation" cannot be undertaken without the Board of the ACC first considering "whether ordinary police methods of investigation into the matters are likely to be effective", it must be read as requiring the Board of the ACC not only to consider this question, but also to determine that ordinary police methods are not "likely to be effective". In the context of the ACC Act, "effective" can and must be understood as meaning "effective to permit the laying of charges against offenders". The word "effective" cannot and should not be read, in the context of the ACC Act generally, or in the particular context of s 7C(3), as embracing any larger task of deciding whether individual criminal guilt is demonstrated. It is only by the engagement of judicial power consequent upon the laying of a charge that individual criminal guilt will be determined.

The ACC may therefore execute its function of investigating matters relating to federally relevant criminal activity by using the extraordinary processes of compulsory examination only when the Board of the ACC has determined that ordinary police methods are not "likely to be effective" to lead to the laying of charges….

(emphasis added)

40    It follows, in the applicant’s submission, from the construction of s 7C(3) adopted in X7 that Wigney J in XCIV at [103] wrongly considered that “the only limit on the scope of the investigation that may be authorised under s 7C is that it is into ‘matters relating to federal relating to federally relevant criminal activity’.” (emphasis added)

41    Based upon that alleged error, the applicant asks this Court to infer from the allegedly unconfined nature of the Determination that the Board failed to consider whether ordinary police methods of investigation are ineffective in compliance with s 7C(3) as construed in X7. As to the premise for the argument that the Determination is unconfined, the applicant contends that it follows from the definition of “Highest risk criminal targets” that the Determination “relates to any form of criminal activity by a suspect” and is not significantly confined by the requirement for an ACC officer to have reasonable grounds for suspecting that a person or entity may be engaged in specified criminal activity.

42    Contrary to the applicant’s submissions, in my view there is no inconsistency between the construction of s 7C(3) adopted in XCIV and that adopted by the High Court in X7.

43    First, with respect the applicant has taken the passage quoted from [103] of his Honour’s reasons in XCIV out of context. His Honour was addressing at [103] the lawful “scope” of an investigation and not whether the precondition to an exercise of the power specified in s 7C(3) was met. The latter had been considered by his Honour earlier in his reasons.

44    Secondly, in line with the construction of s 7C(3) adopted in X7, Wigney J held in XCIV at [92] that “[t]he 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.” Nor, as his Honour held, in those circumstances could any Jones v Dunkel inference be drawn from the fact that the Board did not call any evidence on the point: Jones v Dunkel (1959) 101 CLR 298.

45    Thirdly, the explanation of the circumstances in cl 2 of Schedule 1 to the Determination effectively explains the basis for that finding. In particular, cl 2 states that HRCT criminal activity “is resilient to traditional law enforcement” and that “ACC experience with the investigation of such HRCT indicates that to be effective, ACC and partner bodies need to adopt a collaborative approach” encompassing elements that include the use of ACC coercive power to facilitate the collection of intelligence and evidence “not available through other information collection methods.”

46    Further and in any event, insofar as the applicant seeks to draw an adverse inference from the breadth of the Determination, I can see no error in his Honour’s conclusion in XCIV at [96] that that matter says nothing about whether the Board failed to consider whether ordinary police methods of investigation were likely to prove effective contrary to the express statement in the Determination. Nor for the reasons given below, do I consider that there was any error in Wigney J’s finding the Determination is not impermissibly broad in any event.

4.3    Alleged failure to provide details of the investigation to the required level of specificity (s 7C(4), ACC Act)

47    The applicant also contends that the circumstances and allegations set out in cll 2 and 3 respectively of the Schedule to the Determination contain general propositions which lack the degree of specificity required by s 7C(4)(a) of the ACC Act. Similarly, the applicant contends that the purposes of the investigation set out in cl 9 of the Determination are so broad as to exceed the purposes for which an investigation can be authorised in accordance with s 7C(4)(c). In this regard, the applicant alleges that:

The purpose of the investigation is so broadly defined as to encompass most aspects of law enforcement. Such a broad purpose would only be permissible in the event that ordinary police methods of investigation were in relation to the specified matters, ineffective that is, most aspects of law enforcement were ineffective. The determination is cast in broad terms which do not identify specific or focused investigation.

48    As counsel for the applicant submitted at the hearing “when regard is had to the actual definition that appears in the determination as to what high risk criminal targets is it is so broad and so encompassing in its definition that it really is all persons or all entities engaging or suspected of engaging in all forms of criminal activity.”

49    As noted earlier (see [17] above), s 7C(4) of the ACC Act provides that a determination under s 7C(3) must:

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

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

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

50    As Wigney J held in XCIV at [101], the applicant’s arguments concerning the validity of the determination in this respect also appear to rely on the general proposition that s 7C of the Act allows the Board to authorise a special investigation into specific and confined criminal activity only. On this construction, it would follow that the “federally relevant criminal activity” to be investigated must be defined in narrow or very specific terms in the Determination.

51    I agree with Wigney J at [102] that that construction cannot be sustained. As his Honour held at [103]-[104] of his reasons in XCIV:

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.

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.

52    That construction in my view does no more than give the words of s 7C(4) their ordinary and natural meaning. In this regard, as Hayne, Heydon, Crennan and Kiefel JJ held in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27 (Alcan) at 47 [47], “[t]he language which has actually been employed in the text of legislation is the surest guide to legislative intention.”

53    Their Honours also held that “the meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.” (Alcan at [47]). In this regard, the ACC in common with its predecessor, the NCA, is concerned with investigations which do not necessarily proceed from a discovered offence or offences but are, at the time a determination is made, the start of a fishing expedition. As, for example, von Doussa and Sundberg JJ held in National Crime Authority v A1 (1997) 75 FCR 274 (NCA v A1) in rejecting a challenge to a reference to the NCA on the grounds which relevantly included a lack of specificity, the very nature of an NCA investigation (and, by analogy, an ACC investigation) tells against the need for specificity in the notice (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.

54    Consistently with this, the majority in NCA v A1 held at 289-290 that it was not necessary for the notice to identify any suspected offenders:

… 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.

55    The same may be said with equal force, in my view, with respect to the ACC as Wigney J held in XCIV at [106]-[109].

56    Furthermore, it is apparent from the definition of “serious and organised crime” in s 4(1) of the ACC Act (set out at [10] above) that the type of organised criminal activity with which an investigation may be concerned can be extensive, exceedingly complex, diverse and sophisticated with national and international dimensions, and breaches potentially of a significant number of laws. The point can be illustrated by cl 2(b) of Schedule 1 to the Determination which explains the scope of activities in which HRCTs are typically involved (quoted at [30] above). Such complexity also tells against reading into s 7C a need for specificity in a determination.

57    A construction of s 7C(4) which gives the definition its ordinary and broad meaning therefore promotes the purpose of the ACC Act being, relevantly, to provide the collaborative mechanisms and extraordinary powers which Parliament considers necessary in order to facilitate investigations into such criminal activities where ordinary police methods may be ineffective. As such, this construction is to be preferred also for this reason over the narrow construction for which the applicant contends, in line with s 15AA of the Acts Interpretation Act 1901 (Cth). On the other hand, the kind of specificity for which the applicant contends is likely to require assumptions to be made at the outset of an investigation which are unrealistic in the context of criminal activity of this kind and could impose potential obstacles to a comprehensive investigation into such activities, thereby undermining the objects of ACC Act.

58    It follows, in my view, that not only has the applicant failed to demonstrate that the XCIV was plainly wrong in rejecting the challenge to the Determination on the ground that it lacked the specificity required by s 7C(4), but the decision in XCIV on this issue is supported by earlier Full Court authority and is, in my view, clearly correct. As such, this ground of challenge to the Determination must fail.

4.4    Alleged inconsistency between the Determination and the objects of the ACC Act

59    Next the applicant contends that the purpose for which a Determination may be made is “to provide some limits upon and oversight by the Board and the Intergovernmental Committee of the matters in relation to which the coercive examination powers may be exercised”, referring to ss 8, 9 and 18 of the ACC Act. Section 9 provides that the Inter-Governmental Committee established by s 8 has the function, among others, “to monitor generally the work of the ACC and the Board” while s 18 of the ACC Act provides that the Board is subject to ministerial direction. Contrary to that purpose, the applicant contends that:

…what this determination seeks to do is to authorise the ACC to investigate almost all persons for all purposes.

The statutory provisions intend to provide that the coercive powers of investigation will be confined to those matters that the Board identifies as a special investigation or special operation. The terms of the determination do not do that. The terms of the determination focus the investigation upon those bodies or persons that an ACC officer has reasonable grounds for suspecting has engaged in specified criminal activity.

Not only is this determination too broad, the Board by the determination has impermissibly removed the oversight mechanisms that the Act establishes with respect to the extraordinary investigative powers conferred by the ACC Act on the ACC. Properly analysed the definition of HRCTs does not confine the purposes of the investigation nor the matters to be investigated at all. Rather, the function of identifying persons or bodies to be investigated is delegated to an authorised ACC officer. That is the focus of the investigation is not confined by the reference to HRCTs.

60    In so contending the applicant relies upon limitations upon the exercise of the discretion to make a Determination under s 7C(3) said to be implied from the subject-matter, scope and purpose of the ACC Act in line with established principles: Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997 at 1030-3 (Lord Reid), 1041 (Lord Morris), 1045-6,1049 (Lord Hodson), 1053-4 (Lord Pearce), 1060-2 (Lord Upjohn); Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 39-40 (Mason J); R v Toohey; ex parte Northern Land Council (1981) 151 CLR 170 at 186 (Gibbs CJ), 202 (Stephen J), 217 (Mason J), 264 (Aickin J).

61    In short, the applicant contends that, by reason of the breadth of the Determination authorising the ACC to investigate “almost all persons for all purposes” and the fact that the Determination defines HRCTs as entities which an authorised officer reasonably suspects have various attributes, the identification of HRCTs has effectively been delegated to authorised officers. This is said to be contrary to provisions for the Inter-Governmental Committee to exercise oversight over the Board. For these reasons the applicant contends that the Determination is therefore beyond the power conferred by s 7C of the Act.

62    The same argument was put in XCIV and was rejected. First, at [116] his Honour held that:

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.

63    No error is apparent in my view in his Honour’s reasons in this regard.

64    Secondly, while the scope of the investigation authorised by the Determination is extremely broad, it does not follow that it authorises an investigation into “almost all persons for all purposes.” Rather, the “specified criminal activities” in which an entity must be suspected of engaging to satisfy the definition of an HRCT in cl 3 of the Determination are a ‘subset’ of “federally relevant criminal activity” as defined in the ACC Act. Thus, as Wigney J held in XCIV at [121] in holding that the description in the Determination of the scope of the investigation 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)...

65    Equally, Wigney J rejected the proposition that the Determination fails to comply with s 7C(4)(c) in failing to set out the purpose of the investigation. Specifically at [125], his Honour held that:

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.

66    The basis on which the submission is made in this proceeding is, with respect, also unclear and no error, let alone a plain error, has been demonstrated in his Honour’s reasons for rejecting this ground.

67    Nor, while the question of whether an entity is an HRCT depends on whether a specified ACC officer has reasonable grounds to suspect that an entity has various attributes or characteristics, does it follow that ACC officers effectively determine the scope of the special investigation. Again as Wigney J held at [138]-[139] in XCIV:

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.

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.

68    Wigney J had earlier held at [123] with respect to the alleged failure to comply with s 7C(4)(a):

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.

69    As to the last point made by his Honour, the applicant correctly contends that the threshold of reasonable suspicion is lower than that of reasonable belief and, therefore, that the grounds that may reasonably found a suspicion may be insufficient to reasonably establish belief: George v Rockett (1990) 170 CLR 104 (Rockett) at 115 (the Court). Nonetheless, where a law provides that there must be reasonable grounds to suspect, this still requires the existence of facts which are sufficient to induce that state of mind in a reasonable person: Rockett at 112. As such, whether or not a suspicion is reasonable will depend upon the objective circumstances, as Wigney J found: Rockett at 116 (the Court). It follows that the fact that the Determination employs the lower threshold of reasonable suspicion does not mean that the Determination does not impose a substantive limitation on the entities and activities which may lawfully be the subject of investigation under that instrument.

70    It follows that the applicant’s submission that the Determination is virtually unlimited in scope and purpose cannot be sustained; nor that there has been some impermissible delegation by the Board of its function to ACC officers. Accordingly, I agree with Wigney J that no failure to comply with s 7C(4) of the ACC Act has been established.

4.5    Whether the Determination is unreasonable

71    Finally, the applicant contends that the Determination is unreasonable in that no reasonable decision-maker could have reached the decision that the Board came to about the likely effectiveness of ordinary police methods of investigation when the Board had not considered the identity of the parties the subject of the investigation. In this regard, counsel for the applicant clarified at the hearing that the argument “is not particular individuals that need to be identified but it must be something other than all people or all persons”. The applicant’s counsel further submitted that:

[T]he scope of the determination enables the investigation, I submit, in relation to all matters which would be subject to ordinary police inquiries. There are no words of limitation within the determination other than that the relevant ACC officer has a reasonable suspicion which, in ordinary police investigations, you would have anyway. … So the determination operates to, in effect, enable the coercive powers of the ACC to operate in relation to almost any investigation of almost anyone.

72    The applicant accepted that the question of whether an exercise of discretion was unreasonable in a legal sense fell to be considered having regard to the scope and purpose of the statute: Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at 365-367 [71]-[76] (Hayne, Kiefel and Bell JJ).

73    The applicant’s submission is based upon a construction of the Determination as virtually unlimited which I have rejected earlier in these reasons. As an aspect of this, I consider that the requirement that an ACC officer have a reasonable suspicion that an entity has all of the characteristics specified by clauses (a), (b) and (c) of a HRCT in cl 3 of the Determination, including that the entity may have a high level of intent and ability to commit the federally relevant criminal activity described in Schedule 1, is a substantive limitation on the scope of the Determination. It is, with respect, not accurate to suggest that the Determination authorises an investigation of almost anyone. As earlier stated, notwithstanding its breadth, the Determination authorises an investigation only into a ‘subset’ of serious criminal activity of the kind which, under the ACC Act, may be the subject of a special investigation. That Determinations of such breadth may be made is both contemplated and authorised by the Act for the reasons I have earlier given. As I have also earlier found, the circumstances described in cl 2 of Schedule 1 to the Determination effectively explain the basis on which the Board found that ordinary police methods are not likely to be effective and in my view afford a rational and logical justification for that finding.

74    It follows that the contention that the Determination is an unreasonable exercise of power must be rejected. I also note that, while the question of unreasonableness itself was not directly raised in XCIV, it is apparent that the basis on which the submission is ultimately made here had already been addressed and rejected in XCIV.

5.    CONCLUSION

75    In substance the application sought to re-litigate issues which had been resolved by the decision in XCIV upholding the validity of the Determination. The applicant has failed to demonstrate the decision in XCIV was plainly wrong. To the contrary, I consider that XCIV was correctly decided. As no separate ground challenging the validity of the summons is pressed, the application must be dismissed.

Associate:

Dated:    29 April 2016