FEDERAL COURT OF AUSTRALIA

LX v Commonwealth of Australia [2016] FCA 441

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

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

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

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

REASONS FOR JUDGMENT

BESANKO J:

Introduction

1    There are two proceedings for judicial review before the Court. The applicant in SAD 186 of 2015 was served with a summons to appear before an examiner of the Australian Crime Commission issued under s 28 of the Australian Crime Commission Act 2002 (Cth) (“the Act”) on 17 June 2015. The summons was accompanied by a copy of the Australian Crime Commission Special Investigation Authorisation and Determination (Highest Risk Criminal Targets No 2) 2013 (“the 2013 Determination”). The applicant in SAD 186 of 2015 claims orders pursuant to s 39B of the Judiciary Act 1903 (Cth), and ss 5 and 6 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) restraining the examiner from examining him pursuant to the summons and declarations that the summons and the 2013 Determination are invalid. The applicant in SAD 187 of 2015 was served with a summons to appear before an examiner of the Australian Crime Commission issued under s 28 of the Act on 16 June 2015. The summons was accompanied by a copy of the 2013 Determination. The applicant in SAD 187 of 2015 claims similar relief and on the same grounds as the applicant in SAD 186 of 2015. I heard the trial in SAD 186 of 2015 and then immediately thereafter the trial in SAD 187 of 2015. The submissions made by the applicants and the respondents were the same in both proceedings. The result in both proceedings will be the same. In those circumstances, it is sufficient for these reasons to address the arguments in SAD 186 of 2015.

2    The summons required the examinee to appear before an examiner:

(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 Act 1995 (Cth) (Criminal Code); and

ii)    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.

3    The applicant claims that the 2013 Determination is invalid. He claims that the invalidity of the 2013 Determination means that the summons is also invalid. When he issued his application for judicial review, the applicant also advanced separate grounds upon which he contended that the summons was invalid. Those separate grounds are no long pressed. The application turns on whether the 2013 Determination is valid.

The Relevant Provisions of the Act and the 2013 Determination

4    The 2013 Determination was made by the Board of the Australian Crime Commission.

5    The Australian Crime Commission (“ACC”) is established by s 7 of the Act, and the Board of the ACC is established by s 7B of the Act. Section 7B(2) provides for the constitution of the Board of the ACC and is in the following terms:

Board members

(2)    The Board consists of the following members:

(a)    the Commissioner of the Australian Federal Police;

(b)    the Secretary of the Department;

(c)    the Chief Executive Officer of Customs;

(d)    the Chairperson of the Australian Securities and Investments Commission;

(e)    the Director-General of Security holding office under the Australian Security Intelligence Organisation Act 1979;

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

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

(h)    the CEO;

(i)    the Commissioner of Taxation.

6    Section 7C of the Act provides that the functions of the Board include to authorise, in writing, the ACC to investigate matters relating to federally relevant criminal activity (s 7C(1)(c)) and to determine, in writing, whether such an investigation is a special investigation (s 7C(1)(d)). Section 7C(3) and (4) deal with special investigations and they provide as follows:

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.

7    The Act also establishes an Inter-Governmental Committee which consists of a member to represent the Commonwealth, being the Commonwealth Minister and, in the case of each participating State, a member to represent that State, being a Minister of the Crown of that State nominated by the Premier of that State (s 8(1)). The Inter-Governmental Committee must be given a copy of a determination that an investigation is a special investigation (s 7C(5)), and the Inter-Governmental Committee has the power to revoke a determination (s 9(7)).

8    The power of the Board of the ACC to authorise an investigation and determine that it is a special investigation is with respect to investigations into matters relating to federally relevant criminal activity. The concept of federally relevant criminal activity is defined by a number of definitions in s 4 of the Act and by s 4A of the Act. For present purposes, the following are relevant:

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.

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.

relevant crime means:

(a)    serious or organised crime; or

(b)    Indigenous violence or child abuse.

Note:    See also subsection (2) (which expands the meaning of relevant crime in certain circumstances).

9    Section 4A of the Act sets out the circumstances in which a State offence has a federal aspect for the purposes of the Act. The object of the section is to identify State offences that have a federal aspect because they potentially fall within Commonwealth legislative power because of the elements of the State offence or the circumstances in which the State offence was committed (whether or not those circumstances are expressed to be elements of the offence), or either the ACC investigating them or undertaking an intelligence operation relating to them is incidental to the ACC investigating or undertaking an intelligence operation relating to an offence against a law of the Commonwealth or of a Territory. In terms of the submissions in this case, the relevant provisions of s 4A are as follows:

(2)    For the purposes of this Act, a State offence has a federal aspect if, and only if:

(a)    …

(b)    …    

(c)    assuming that the Parliament of the Commonwealth had enacted a provision that created an offence penalising the specific acts or omissions involved in committing the State offence – that provision would have been a valid law of the Commonwealth; or

…

(3)    For the purposes of (2)(c), the specificity of the acts or omissions involved in committing a State offence is to be determined having regard to the circumstances in which the offence was committed (whether or not those circumstances are expressed to be elements of the offence).

10    Part II Division 2 deals with examinations, and s 24A provides that an examiner may conduct an examination for the purposes of a special ACC operation/investigation. Subsections (2) and (3) of s 28 provide as follows:

(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.

11    The 2013 Determination is dated 4 September 2013. As its title indicates, it involves an investigation into federally relevant criminal activity relating to High Risk Criminal Targets. The definition of High Risk Criminal Targets or HRCTs in the 2013 Determination is as follows:

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;

The term “specified criminal activity” is defined in the 2013 Determination to mean the federally relevant criminal activity described in Schedule 1.

12    Clause 4 of the 2013 Determination provides for the authorisation by the Board of the ACC to investigate specified criminal activity until 30 June 2016. Clause 6 is entitled “Determination” and is in the following terms:

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.

13    Clauses 7, 8 and 9 of the 2013 Determination purport to address the matters identified in s 7C(4) of the Act. Clause 7 provides that the general nature of the circumstances or allegations constituting specified criminal activity are set out in Schedule 1. Clause 8 provides that specified criminal activity includes offences against a law of the Commonwealth, a law of a State, or a law of a Territory. Clause 9 sets out the purposes of the investigation and each of the relevant purposes relates to the specified criminal activity of HRCTs and, in one case, associated entities.

14    Schedule 1 to the 2013 Determination is entitled “Authorised Investigation”. Clause 1 deals with matters to be investigated and is in the following terms:

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 roles of entities involved in it.

15    Clauses 2 and 3 in Schedule 1 to the 2013 Determination are in the following terms:

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.

The Grounds upon which the 2013 Determination is Challenged

16    Two provisions of the Act form the foundation of the applicant’s challenge to the validity of the 2013 Determination. First, the applicant relies on s 7C(3) which provides that before the Board of the ACC determines that an investigation is a special investigation, it must consider whether ordinary police methods of investigation into the matters are likely to be effective. Secondly, having regard to s 4A, the 2013 Determination authorises an investigation into State offences with a federal aspect where it will not be known until the circumstances in which the offence was committed are ascertained whether there is a State offence with a federal aspect.

17    The grounds of challenge to the 2013 Determination as set out in the applicant’s Amended Statement of Claim are as follows:

Invalidity of the 2013 Determination

The subject matter of the 2013 is not a “special investigation”

8.    By necessary implication arising from:

8.1    the requirement in s 7C(3) of the Act that the Board determine that, in respect of an investigation which is proposed to be authorised as a special investigation, ordinary police methods of investigation into the matters are not likely to be effective; and

8.2    the provision in s 4A(3) of the Act which is to the effect that the question whether a State offence may involve a federal aspect so as to give rise to federally relevant criminal activity may turn upon the specific acts or omissions involved in particular offending (whether or not constituting elements of the offending);

a special investigation must be defined by reference to criminal activity (having occurred, presently occurring, or occurring in the future) with a degree of specificity likely to permit an accurate answer to be given to the inquiry required by s 7C(3) and likely to permit an assessment of whether the criminal activity has a federal aspect (necessary degree of specificity).

9.    The 2013 Determination

9.1    extends to State offences which may or may not have a federal aspect, it being impossible to say one way or the other by reference to the terms of the determination;

9.2    applies to federally relevant criminal activity involving so-called “HRCT’s” without any case-specific temporal limitation, having the consequence that, in respect of any offending within the scope of the determination, it could not reasonably be expected to be able to be said with accuracy that, for the period of the determination, ordinary police methods of investigation are not likely to be effective;

and therefore lacks the necessary degree of specificity and is ultra vires and invalid.

Breadth of subject matter discloses unreasonableness

10.    The nature and scope of the investigation purportedly authorised by the 2013 Determination is so varied and broad that it can be inferred that:

10.1    the Board’s determination expressed in cl 6(b) (that ordinary police methods of investigation into the specified criminal activity are not likely to be effective) is so unreasonable that no reasonable decision-maker could have so determined; and

10.2    consequently, the resulting determination was an improper exercise of power.

11.    Further, or in the alternative, in so far as the nature and scope of the investigation purportedly authorised by the 2013 Determination turned upon the identity of so-called “HRCT’s”, from time to time, or upon matters suspected by the head of the ACC from time to time, it can be inferred that:

11.1    the Board’s determination expressed in cl 6(b) (that ordinary police methods of investigation into the specified criminal activity are not likely to be effective) is so unreasonable that no reasonable decision-maker could have so determined; and

11.2    consequently, the resulting determination was an improper exercise of power.

X7 v Australian Crime Commission (2013) 248 CLR 92 (“X7”) and XCIV v Australian Crime Commission (2015) 234 FCR 274 (“XCIV”)

18    Before addressing the applicant’s arguments, there are two cases to be addressed.

19    In X7, Hayne and Bell JJ considered the requirement in s 7C(3) of the Act that before the Board determines in writing that an investigation into matters relating to federally relevant criminal activity is a special investigation, it must consider whether ordinary police methods of investigation into the matters are likely to be effective. Their Honours said that in the context of the Act, this meant that the Board of the ACC was required not only to consider the question, but also, to determine that ordinary police methods are not likely to be effective to permit the laying of charges against offenders before making the relevant determinations. Their Honours said (at 150 [146]):

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.

(Citations omitted).

20    As to the Determination in issue in that case, their Honours said that the better view may well be that the phrase “to determine whether”, when read in context, meant that it did not encompass the criminal activity of any person which was activity the subject of pending charges against that person, or activity which that person had admitted or been proved to have undertaken (at 151-152 [153]).

21    In XCIV, Wigney J addressed a challenge to the validity of the 2013 Determination. His Honour identified the four grounds upon which the applicant in that case challenged the validity of the determination (other than the constitutional point) at paragraphs 35 to 39, and his reasons for rejecting each ground at paragraphs 91 to 139.

22    The grounds upon which the 2013 Determination was challenged in that case were as follows:

(1)    The Board did not consider whether ordinary police methods of investigation were likely to be effective before making the determination.

(2)    The determination did not describe the general nature of the circumstances or allegations constituting the federally relevant criminal activity as required by s 7C(4)(a).

(3)    The determination was so broad in its scope that it was not a proper exercise of power under s 7C.

(4)    The determination was invalid because it amounted to an impermissible delegation of the Board’s power under s 7C to an officer or officers of the ACC. The applicant in XCIV relied on the definition of “High Risk Criminal Targets” in clause 3 of the Determination to support this argument.

23    I will address his Honour’s reasons for disposing of some of these arguments later in these reasons.

The Issues on the Application

24    The Board of the ACC has a statutory power to authorise the ACC to investigate matters relating to federally relevant criminal activity. The investigation must be limited to matters relating to federally relevant criminal activity. The Board then has the statutory power to determine that an investigation relating to federally relevant criminal activity is a special investigation. Before it takes this latter step, it must be satisfied that ordinary police methods of investigation into the matters (relating to federally relevant criminal activity) are not likely to be effective to permit the laying of charges against offenders. As a convenient form of shorthand, I will call this the ordinary police methods of investigation issue. The determination of the issue is a pre-condition to the exercise of the statutory power to determine that an investigation is a special investigation.

25    The composition of the Board of the ACC suggests a body well-placed in terms of experience and expertise to address the ordinary police methods of investigation issue. The assessment to be made by the Board of the ACC is an assessment of likelihood not of certainty.

26    With these opening remarks in mind, I turn to identify the applicant’s submissions. The applicant’s first submission is that the 2013 Determination is invalid because it is too broad. In other words, it did not satisfy the statutory requirements for an authorised investigation which has been determined to be a special investigation. The applicant’s principal contention in support of this submission is that the ordinary police methods of investigation issue provides a limitation on the breadth of a permissible investigation. In other words, “the matters relating to federally relevant criminal activity” must be identified with sufficient particularity to permit of an answer to the ordinary police methods of investigation issue. I think that the applicant also advanced a more general contention that the 2013 Determination is too broad irrespective of the ordinary police methods of investigation issue. The submission seemed to be that the ambulatory nature of the investigation is fatal to its validity. The ambulatory nature of the investigation was said to arise from the fact that the matters to be investigated could not be identified at the outset (i.e., at the time the 2013 Determination was made), but only from time to time as the authorised ACC officer formed the reasonable suspicion identified in the definition of HRCTs in the 2013 Determination.

27    The applicant’s alternative submission is that the 2013 Determination is invalid because the decision by the Board of the ACC with respect to the ordinary police methods of investigation issue was legally unreasonable.

28    In one sense, this is another way of approaching the same issue. If the ordinary police methods of investigation issue does not operate directly on the permissible breadth of an investigation, nevertheless, the issue must be addressed by the Board of the ACC and if the 2013 Determination is so broad that that cannot be done, then a decision purporting to do so, is legally unreasonable. The applicant’s submission is that the decision of the Board of the ACC on the ordinary police methods of investigation issue lacked an evident and intelligible justification and was legally unreasonable (Minister for Immigration and Citizenship v Li and Another (2013) 249 CLR 332 at 367 [76] per Hayne, Kiefel and Bell JJ; see also Minister for Immigration and Border Protection v Singh and Another (2014) 231 FCR 437 and Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11).

29    In National Crime Authority v A1 (1997) 75 FCR 274 (“A1”) and AB v National Crime Authority (1998) 85 FCR 538 (“AB”), the Full Court of this Court considered the validity of a reference of a matter relating to a relevant criminal activity to the National Crime Authority for investigation. The relevant Act was the National Crime Authority Act 1984 (Cth).

30    The applicant submitted that authorities under that Act were of very limited relevance to the Act. It seems to me that the general principles identified in A1 and AB are relevant to special investigations under the Act. The general principles about the nature of investigations under the National Crime Authority Act identified by von Doussa and Sundberg JJ in A1 apply with equal force to special investigations under the Act. 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 (cf Douglas v Pindling at 901). 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 (cf Ross v Costigan at 200-201; 334, Melbourne Home of Ford at 175 at Douglas v Pindling at 905). Because the NCA is an investigative body, it must necessarily embark on a fishing expedition (cf McGuinness v Attorney-General (Vic) at 92 and Douglas v Pindling at 904). 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.

31    Furthermore, the similarities between a key section in the National Crime Authority Act, s 13(2), and s 7C(4) are obvious. Section 13(2) of the National Crime Authority Act was in the following terms:

A notice under subsection (1) referring a matter to the Authority for investigation:

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

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

(c)    shall set out the purpose of the investigation.

32    In A1, von Doussa and Sundberg JJ considered whether, in order to be valid, a reference under s 13 of the National Crime Authority Act needed to identify four matters and held that a reference did not need to do so. Those matters were as follows:

(1)    the criminal activities in precise terms;

(2)    a precise time-frame in which it is said that the criminal activities occurred;

(3)    the persons or entities who were said to be or may be engaged in the criminal activities; and

(4)    the conduct of any persons or any transactions the subject of the allegations.

Their Honours referred to a case wherein the Minister became aware of a vast increase in the amount of heroin being trafficked in Sydney. He could refer to the National Crime Authority for investigation the question whether the offence of heroin importation has been or is being committed, and if so by whom because this would be “a matter relating to a relevant criminal activity”. The reference would be valid even though the identity of the offenders was unknown and even though “no particular conduct or precise transaction is known” (at 290).

33    In AB, there was a reference by the Minister under s 13 of the National Crime Authority Act and a claim that the notices of reference were invalid. The Full Court followed the decision in A1 (see 551-553 especially at 553).

34    Wigney J in XCIV considered the approach taken by von Doussa and Sundberg JJ in A1 to be relevant to the approach to be taken under the Act (at [105]-[113]).

35    It is true that the subject of the 2013 Determination are the activities of HRCTs and that they may be identified from time to time during the life of the Determination. That comes about because it is the reasonable suspicion of an authorised ACC officer about the attributes of an entity that bring it within the definition of a HRCT. In that sense, the scope of the investigation may vary over the life of the Determination. However, I would think that that would be a feature of almost all investigations and I do not think it means that the 2013 Determination itself is ambulatory in an impermissible way. The relevant parameters of the investigation authorised by the 2013 Determination are fixed by reference to the terms of the power.

36    I note that the applicant in this case did not advance the argument advanced in XCIV that the 2013 Determination impermissibly delegated power to an officer or officers of the ACC. That argument was rejected by Wigney J (at [135]-[139]. I also note that at least some aspects of the argument now advanced were considered by Wigney J and rejected by him. His Honour said (at [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.

37    I come now to the main arguments advanced by the applicant. The applicant pointed to the list of offences in clause 3 of Schedule 1 to the 2013 Determination and highlighted, by way of example, offences involving violence punishable by imprisonment for a period of three years or more (cl 3(d)) and theft (cl 3(h)). As I understood the submission, it was that there was nothing about the nature of these offences which suggested that ordinary police methods of investigation were not likely to be effective in the relevant sense. That had to be found elsewhere and that could only be in the description of HRCTs. When one then considered the definition of HRCTs, what was notable (so the applicant submitted) was that the group was defined by reference to a reasonable suspicion of an authorised ACC officer that the entity may have the attributes identified in paragraphs (a), (b) and (c). The applicant submitted that even if it is assumed that the group whose activities are the subject of the investigation can be defined by reference to attributes which in themselves indicate that ordinary police methods of investigation are not likely to be effective and even if it is assumed that that is what has been done in the definition of HRCTs, nevertheless the use of the word “may” means that some entities may not, in fact, have the relevant attributes and so it cannot be said that ordinary police methods of investigation were not likely to be effective in the relevant sense with respect to such entities. I reject this submission.

38    I think that a Determination could define the group to be investigated by reference to attributes or characteristics which in themselves justify a conclusion that ordinary police methods of investigation are not likely to be effective in the relevant sense. In my opinion, this Determination does just that. It is not only paragraph (c) in the definition of HRCT’s which is relevant in this respect, but also paragraphs (a) and (b). For example, paragraph (b) refers to a high level of ability to commit specified criminal activity. Another aspect of the definition which is important is that the authorised ACC officer must not only have a suspicion, but must also have reasonable grounds for that suspicion. In other words, there must be circumstances which would create in the mind of a reasonable person a suspicion that the entity may have the relevant attributes or characteristics (Queensland Bacon Proprietary Ltd v Rees (1966) 115 CLR 266 at 303 per Kitto J; George v Rockett and Another (1990) 170 CLR 104 at 115-116).

39    There are two obvious matters to be noted about the requirement that the Board of the ACC be satisfied that ordinary police methods of investigation are not likely to effective in the relevant sense. First, it is not necessary that the Board of the ACC be satisfied that ordinary police methods of investigation will not be effective. Secondly, the issue will not always be an easy one to answer and there are questions of degree involved.

40    Considering all of these matters together, I do not think that the 2013 Determination is invalid because the definition of HRCTs means that the Board of the ACC could not address and answer the ordinary police methods of investigation issue.

41    The applicant put a further argument in support of the submission that the 2013 Determination was invalid because the Board of the ACC could not answer the ordinary police methods of investigation issue. It concerned State offences having a federal aspect. In XCIV, Wigney J decided that the offences identified in clauses 3(d) and 3(h) of Schedule 1 to the 2013 Determination were Commonwealth offences or State offences having a federal aspect (at [131]). State offences having a federal aspect are also covered when they fall within the circumstances identified in clause 3(m) of Schedule 1. As I understood the applicant’s argument, it was that with respect to some State offences having a federal aspect, it will not become apparent that it is within the investigation until the circumstances in which the offence was committed are ascertained and, in those circumstances, it is difficult to see how the ordinary police methods of investigation issue could be addressed at the time of the 2013 Determination. I would make the observation that if that is a difficulty it appears to be a difficulty within the Act, rather than the Determination. In any event, I do not think the point succeeds because the circumstances relate to HRCTs and the Board of the ACC is able to address the ordinary police methods of investigation issue in relation to them.

42    The other way the applicant put his argument about the ordinary police methods of investigation issue was that the decision of the Board of the ACC was legally unreasonable. In XCIV, Wigney J rejected an argument that the Board of the ACC had not determined the issue (at [91]-[98]) and he said that the Board of the ACC had stated in clause 6 of the 2013 Determination that it had determined the issue. The applicant submitted that, assuming it had done so, nevertheless its decision was legally unreasonable. This submission focused on the breadth of the 2013 Determination. For the reasons I have given, I think it was open to the Board of the ACC to conclude (as it did) that, with respect to the specified criminal activity identified in the 2013 Determination, ordinary police methods of investigation were not likely to be effective in the relevant sense.

Conclusion

43    None of the grounds of challenge have been made out in this case and the application in SAD 186 of 2015 must be dismissed. The application in SAD 187 of 2015 must also be dismissed.

Associate:    

Dated:    29 April 2016