FEDERAL COURT OF AUSTRALIA

XXVII v The Commonwealth of Australia [2017] FCA 320

ORDERS

THE COURT ORDERS THAT:

1.    The time by which the applicant may commence an application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) in respect of the subject matter of this action is extended nuc pro tunc to 22 August 2016.

2.    The application is dismissed.

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

REASONS FOR JUDGMENT

CHARLESWORTH J:

INTRODUCTION

1    This is an application for judicial review made under s 39B of the Judiciary Act 1903 (Cth) and s 5 and s 6 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act).

2    The applicant has been served with a summons dated 24 February 2016 (Summons) issued or purportedly issued under s 28(1) of the Australian Crime Commission Act 2002 (Cth) (the ACC Act). The Summons purports to compel the applicant to attend at an examination at a specified time “and from day to day unless excused or released from further attendance”.

3    Among other things, the applicant challenges the validity of the following instruments made by the Board of the Australian Crime Commission (ACC):

(1)    the Australian Crime Commission Special Investigation Authorisation and Determination (Highest Risk Criminal Targets No 2) 2013 (the 2013 instrument); and

(2)    the Australian Crime Commission Special Investigation Authorisation and Determination (Highest Risk Criminal Targets No 2) Amendment No 1 of 2016 (the 2016 instrument).

4    The applicant contends that the Summons is invalid by reason of the invalidity of the 2013 instrument and because it does not otherwise comply with the requirements of the ACC Act. He further contends that the 2016 instrument is invalid and, relatedly, that the Summons (if valid) was “spent” in any event as at 30 June 2016. He seeks declaratory relief and an injunction restraining the third respondent from examining him pursuant to the Summons.

5    For the reasons given below, I reject all of the applicant’s challenges to the validity of the 2013 instrument, the 2016 instrument and the Summons itself. Further, the Summons is not “spent”, at least not in the sense contended for by the applicant. Accordingly, the application for judicial review should be dismissed.

the legislation

6    The ACC Act came into force on 1 July 1984 as the then-titled National Crime Authority Act 1984 (Cth) (NCA Act). Its title was changed by amendments affected by the Australian Crime Commission Establishment Act 2002 (Cth). That same Act brought the ACC into existence: s 7(1) of the ACC Act.

7    The ACC Act was amended by the Law Enforcement Legislation Amendment (Powers) Act 2015 (Cth) (the Amending Act), the relevant provisions of which came into force on 28 July 2015: see s 2 of the Amending Act.

8    Subsequent amendments affected by the Australian Crime Commission Amendment (National Policing Information) Act 2016 (Cth) do not bear on this application. I should note, however, that by amendments made by that Act, the ACC may now also be referred to as the Australian Criminal Intelligence Commission.

Entities

9    The ACC consists of a Chief Executive Officer (appointed under s 37), examiners (appointed under s 46B(1)) and members of staff (appointed under s 47): see s 7(2). The third respondent is an examiner appointed under s 46B(1) (Examiner).

10    The ACC has the functions of, among other things, investigating, when authorised by the Board, matters relating to federally relevant criminal activity and providing reports to the Board on the outcomes of its investigations: see s 7A(c) and (d). By s 19, the ACC has the power to do all things necessary to be done for or in connection with, or reasonably incidental to, the performance of its functions. The Commonwealth of Australia is named as the first respondent in the proceedings, the ACC being an agency or instrumentality of the Crown.

11    The Board of the ACC is established by s 7B(1). It is a separate entity from the ACC. It is joined as the second respondent by its Chief Executive Officer as its representative.

12    The Board consists of the members specified in s 7B(2). They include the Commissioner of the Australian Federal Police, the Commissioner or head (howsoever described) of the police force of each State and the Northern Territory and the Chief Police Officer of the Australian Capital Territory: ss 7B(2)(a), (f) and (g) respectively.

13    The Board’s functions relevantly include:

(1)    authorising, in writing, the ACC to undertake intelligence operations or to investigate matters relating to federally relevant criminal activity (s 7C(1)(c)); and

(2)    determining, in writing, whether such an operation is a special operation or whether such an investigation is a special investigation (s 7C(1)(d)).

14    It should be observed from the outset that these functions are discrete. The Board may, in the discharge of its function under s 7C(1)(c), authorise the ACC to conduct an investigation and yet make no determination that the investigation is a special investigation. The determination that an investigation is a special one triggers a range of coercive powers exercisable by the ACC, particularly those contained in s 22 (relating to search warrants) and Div 2 of Pt II of the ACC Act (of which the power to conduct an examination (s 24A) and the power to issue a summons (s 28) form a part). Other powers may be exercised by the ACC whether or not an investigation has been determined by the Board to be a special investigation: see, for example, the powers conferred under s 19A and s 20. Although there is a requirement that an authorisation made in the discharge of the function conferred by s 7C(1)(c) and the determination made in the discharge of the function conferred by s 7C(1)(d) each be done in writing, there is nothing in the ACC Act to preclude the Board from discharging both functions within the same written document.

15    The Board’s function of determining that an investigation is a special investigation is supported and conditioned by the power conferred by s 7C(3). It provides:

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 at understanding, disrupting or preventing the federally relevant criminal activity.

(emphasis added)

16    The phrase “federally relevant criminal activity” is exhaustively defined in s 4(1) of the ACC Act to mean:

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

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

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

(ii)    has a federal aspect.

17    The phrase “relevant criminal activity” is also exhaustively defined in s 4(1). It 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.

18    The emphasised words in s 7C(3) extracted above were introduced by the Amending Act, that is, after the making of the 2013 instrument. The meaning of the provision as in force prior to the amendment was considered by Hayne and Bell JJ (Kiefel J agreeing) in X 7 v Australian Crime Commission (2013) 248 CLR 92 (X 7) at [146] — [147]. Their Honours said:

146.    . . . 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.

147.    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.

19    Section 7C(4) imposes requirements upon the Board in relation to the content of a determination made pursuant to s 7C(3). It provides:

(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.

20    When a determination is made under s 7C(3), the Chair of the Board must give a copy of the determination to the Inter-Governmental Committee (IGC) within seven days: s 7C(5). The IGC may request further information from the Board about a s 7C(3) determination and may revoke such a determination within certain statutory timeframes: ss 9(2), (3) and (7). The IGC is established under s 9. It consists of members representing the Commonwealth and participating States and has the function of monitoring the work of the ACC and the Board: s 9 of the ACC Act.

Examination

21    An examiner may conduct an examination for the purposes of a special investigation: s 24A(1). The examination may be a pre-charge examination, a post-charge examination, a pre-confiscation application examination or a post-confiscation application examination. Each of those phrases is defined in s 4(1). Relevantly, a post-charge examination is an examination that occurs at a time when the examinee has been charged with a “related offence” and the charge is still to be resolved, or when such a charge is imminent. An offence will be a related offence where, relevantly, the subject matter of the offence relates to the subject matter of the examination: see s 4(1) and the definition of “related offence”.

Summons

22    Section 28(1) of the ACC Act confers powers on an examiner to summons a person to appear at an examination to give evidence and/or to produce any document or thing referred to in the summons. A summons may be a post-charge summons, in that it is issued to a person at a time when the examinee has been charged with a related offence that is still to be resolved, or such a charge is imminent: s 4(1). An offence will be a “related offence” for these purposes if its subject matter relates to the subject matter of the summons.

23    It is alleged that the summons served on the applicant in the present case does not comply with s 28 of the ACC Act in multiple respects. Section 28 relevantly provides:

28 Power to summon witnesses and take evidence

(1)    An examiner may summon a person to appear before an examiner at an examination to do either or both of the following:

(a)    give evidence;

(b)    produce any documents or other things referred to in the summons;

if the examiner is satisfied that issuing the summons is:

(c)    in all cases—reasonable in all the circumstances; and

(d)    in the case of a post-charge, or post-confiscation application, summons—reasonably necessary for the purposes of the relevant special ACC operation/investigation even though:

(i)    the person has been charged or the confiscation proceeding has commenced; or

(ii)    that charge or proceeding is imminent.

(1A)    The examiner must also record in writing the reasons for the issue of the summons. The record is to be made:

(a)    before the issue of the summons; or

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

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

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

Note:    Those matters could relate to a charge or confiscation proceeding against the person (see subsection 25A(6A)).

…

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

24    A person served with a summons in accordance with s 28 commits an indictable offence if the person fails to attend as required by the summons or fails to attend from day to day unless excused or released from further attendance by the examiner: s 30(1) and (7).

Transitional provisions

25    The amendments to s 7C(3) to which I have referred were introduced under Pt 1 of Sch 1 to the Amending Act. Clause 37 of Pt 1 of Sch 1 relevantly provides:

37 Application of amendments

(1)    Subject to subitems (3) to (6), the amendments made by this Part apply in relation to:

…

(b)    summonses issued under subsection 28(1) of the Australian Crime Commission Act 2002 at or after the commencement of this Part.

(2)    The amendments made by this Part of subsections 7C(2) and (3) of that Act apply in relation to determinations made under those subsections at or after the commencement of this Part.

26    Subclauses 38(1) and (2) of Sch 1 to the Amending Act provides:

38 Transitional—existing directions and summonses

…

(2)    A summons issued under subsection 28(1) of the Australian Crime Commission Act 2002, that is in force immediately before the commencement of this Part, continues in force (and may be dealt with) as if it had been issued under that subsection as amended by this Part.

FACTS

Making of the 2013 instrument

27    The 2013 instrument is dated 4 September 2013. It is expressed to commence immediately after it is made. Clauses 4 — 6 of the instrument provide:

4    Authorisation

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

5    Reporting

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

6    Determination

Pursuant to paragraph 7C(1)(d) and subsection 7C(3) of the Act, the Board:

(a)    has considered whether ordinary police methods of investigation into specified criminal activity are likely to be effective;

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

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

28    It is clear on the face of the 2013 instrument that it is intended to constitute both an authorisation for the purposes of s 7(1)(c) of the ACC Act (cl 4) and a determination for the purposes of s 7(1)(d) and s 7C(3) of the ACC Act (cl 6).

29    Clause 7 is titled “Description of general nature of the circumstances or allegations”. It cross-refers to the matters set out in Sch 1. The schedule is lengthy. It is set out in full in the judgment of Wigney J in XCIV v Australian Crime Commission (2015) 234 FCR 274 (XCIV) at [20], to which I will later refer.

Events occurring after the 2013 instrument

30    As can be seen by cl 4 of the 2013 instrument (as originally made), the authority of the ACC to investigate the specified criminal activity was to end on 30 June 2016. Between the making of the 2013 instrument and 30 June 2016 the following events occurred:

(1)    relevant amendments introduced by the Amending Act came into force on 28 July 2015;

(2)    the Summons was issued on 24 February 2016 and was served (accompanied by the 2013 instrument) on 29 February 2016;

(3)    these proceedings were commenced on 11 March 2016;

(4)    on 15 March 2016 the applicant attended before the Examiner and the examination was subsequently adjourned from time to time pending the outcome of this proceeding; and

(5)    the 2016 instrument was made on 8 June 2016.

31    Some of these events require elaboration.

The summons served on the applicant

32    The Summons is relevantly expressed as follows:

I, an Examiner duly appointed under section 468 of the Australian Crime Commission Act 2002 (the Act), pursuant to subsection 28(1) of the Act, for the purposes of the special ACC investigation being conducted by the Australian Crime Commission (ACC) under the Australian Crime Commission Special Investigation Authorisation and Determination (Highest Risk Criminal Targets No.2) 2013 (the Determination):

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

2.    being satisfied that it is reasonably necessary for the purposes of the special ACC investigation even though you have been charged with a relevant offence;

3.    having recorded in writing the reasons for being so satisfied at 2.44 pm on 24th February 2016;

4.    summon you:

(a)    to appear at 10:00 am on Tuesday, 15th March 2016 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 in relation to matters of the following general nature, being matters that are relevant to federally relevant criminal activity, and that may include the following:

i)    serious drug offences contrary to Part 9.1 of the Criminal Code Act 1995 (Cth) (Criminal Code);

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; and

iii)    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.

33    It is not disputed that at the time that the Summons was issued, the applicant was charged with State drug offences and the charges were yet to be resolved.

The applicant’s attendance

34    Ms Judith Jefferson is a Principal Legal Officer employed by the ACC. She acts as Counsel assisting the Examiner in relation to the Summons. The events occurring since the service of the Summons on the applicant are described in Ms Jefferson’s affidavit sworn on 26 August 2016 as follows:

4.    On Tuesday, 15 March 2016, the Applicant appeared before Examiner Anderson (the Examiner) pursuant to the summons. He was represented by Mr Harry Patsouris, of Patsouris and Associates. Mr Patsouris indicated that the Applicant’s attendance was made without submitting to jurisdiction. Mr Patsouris also indicated that a proceeding in the Federal Court, challenging the validity of the summons, had been instituted (ie the present action).

5.    The Examiner decided to adjourn the hearing on account of what Mr Patsouris told him. It was adjourned to Tuesday, 26 April 2016 at 10.00 am.

6.    Neither the Applicant nor Mr Patsouris attended at the resumed hearing because they were excused from attending. I advised the Examiner of the status of the present litigation. Acting on that advice, he adjourned the matter to 10.00 am on 31 May 2016 for mention only. A similar adjournment was granted, for substantially the same reasons, on 31 May 2016. The Examiner excused the Applicant’s attendance.

The 2016 instrument

35    Clause 3 of the 2016 instrument states:

3    Amendment of Australian Crime Commission Special Investigation Authorisation and Determination (Highest Risk Criminal Targets No.2) 2013

The Australian Crime Commission Special Investigation Authorisation and Determination (Highest Risk Criminal Targets No.2) 2013 made by the ACC Board on 4 September 2013 is amended as follows-

Paragraph 4 delete ‘until 30 June 2016’.

Paragraph 5 after ‘30 June 2016’ insert ‘and 30 June each year thereafter’.

After paragraph 6(c) insert:

On 8 June 2016, the Board before making the amendment to paragraph 4:

(i)    considered whether ordinary police methods of investigation into the specified criminal activity are likely to be effective at understanding, disrupting or preventing the specified criminal activity;

(ii)    determined that ordinary police methods of investigation into the specified criminal activity are not likely to be effective at understanding, disrupting or preventing the specified criminal activity; and

(iii)    determines that the investigation authorised by this instrument, as amended, remains a special investigation.

36    The applicant has not been served with a summons accompanied by the 2016 instrument, nor with a summons accompanied by the 2013 instrument as amended by the 2016 instrument. He has however, been provided with a copy of the 2016 instrument. The date on which that occurred is unclear.

JURISDICTION

37    Section 16 of the ACC Act imposes a limitation on challenges to determinations made by the Board. It provides that if an investigation into matters relating to federally relevant criminal activity is determined by the Board to be a special investigation then any act or thing done by the ACC because of that determination must not be “challenged, reviewed, quashed or called in question in any court on the ground that the determination was not lawfully made”. The applicant challenges acts done pursuant to one or more Board determinations that are said to have been unlawfully made within the textual meaning of that provision.

38    Section 16 is to be read “so as to refer to decisions which involve neither a failure to exercise jurisdiction nor an excess of the jurisdiction conferred by the ACC Act”: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at [76] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ); P v Board of Australian Crime Commission (2006) 151 FCR 114 (P) at [25]; D v Australian Crime Commission (2006) 152 FCR 497 at [31].

39    The respondents did not invoke s 16 in response to the claim. The submissions proceeded on the common footing that the pleaded challenges to the validity of the 2013 instrument and the 2016 instrument (assuming it to be either a determination or an instrument amending a determination) are allegations to the effect that the Board has committed errors that are amenable to review notwithstanding s 16 of the ACC Act. I will proceed on that agreed basis.

40    Section 57 of the ACC Act limits the time in which an application under the ADJR Act may be made. It substitutes the time limitations ordinarily applicable under that Act with a requirement that an application for review in respect of a matter arising under the ACC Act be lodged within five days after the applicant becomes aware of the matter, or within such further period as the Court allows. The applicant acknowledges that an extension of time is required to commence the proceeding insofar as it seeks to invoke the Court’s jurisdiction under the ADJR Act. The respondents do not oppose the extension. An extension of time will be granted nuc pro tuc to the date upon which the Amended Statement of Claim (ASOC) was filed.

41    I am otherwise satisfied that the conduct and decisions challenged in the ASOC are decisions that are amenable to review under the ADJR Act and s 39B(1) of the Judiciary Act 1903 (Cth): Ousley v R (1997) 192 CLR 69 at 130 (Gummow J).

ISSUES

42    A Constitutional point initially advanced at [31] — [38] of the ASOC was abandoned shortly prior to the hearing of the application. There are many remaining grounds of review raising interrelated issues. For my own convenience, I have organised, summarised and numbered the broad issues 1 through 9 to reflect the order in which I propose to deal with them. I will refer to these broad issues as “grounds”, although most of them involve two or more discrete contentions that may be regarded as grounds of review in their own right. The grounds are:

(1)    the Examiner failed to comply with the requirements of s 24A(1) of the ACC Act (ASOC [20] — [26]);

(2)    the Examiner failed to comply with the requirements of s 28(1)(c) and (d) of the ACC Act (ASOC [27] – [30]);

(3)    the Examiner failed to comply with the requirements of s 28(3) of the ACC Act (ASOC [39] – [42]);

(4)    the Examiner failed to comply with the requirements of s 28(2) of the ACC Act (ASOC [43]);

(5)    the Examiner otherwise failed to have regard to a relevant consideration (ASOC [56]);

(6)    the 2013 instrument is invalid (ASOC [64] – [73]);

(7)    the Summons did not comply with s 28(7) of the ACC Act (ASOC [44] — [ 54]);

(8)    the 2016 instrument is invalid (ASOC [62], [74] – [75]); and

(9)    the Summons is spent by reason of the terms of the 2013 instrument and the invalidity of the 2016 instrument (ASOC [57] – [63]).

43    For the purposes of all of the above grounds it may be accepted that the validity of the 2013 instrument necessarily affects the validity of the Summons (ASOC [55]).

44    The onus is upon the applicant to establish the grounds of review. That onus extends not only to establishing a failure to comply with the requirements of the statute, but also to establishing that any such error is jurisdictional and necessarily results in invalidity: AB Pty Ltd v Australian Crime Commission (2009) 175 FCR 296 at [8]; Australian Securities Commission v Lucas (1992) 36 FCR 165 at 177; X v Australian Crime Commission (2004) 139 FCR 413 (X) at [22].

GROUND 1

45    There are three limbs to this ground of review. The first is that the Summons is invalid because it did not specify whether the examination was a pre-charge, post-charge, pre-confiscation or post-confiscation examination. The second is that the Examiner’s decision to issue the Summons was affected by legal unreasonableness because of the asserted failure to specify on the face of the Summons that the examination was a pre-charge, post-charge, pre-confiscation or post-confiscation examination. The third is that the Examiner “failed to be satisfied that the examination was either” a pre-charge, post-charge, pre-confiscation or post-confiscation examination.

The first contention

46    The first contention is founded on the proposition that s 24A(1) or (2) of the ACC Act implicitly requires that a summons issued under s 28(1) contain an express statement as to whether it is (for present purposes) a post-charge summons. The applicant drew support for that proposition from what was said by Merkel J in A 1 v National Crime Authority (1996) 67 FCR 464 (A 1 at first instance) in relation to requirements then set out in s 13 and s 14 of the NCA Act.

47    Section 13 and s 14 of the NCA Act provided for the referral of a “matter” to the NCA for investigation by a Minister of the Commonwealth or of a State respectively. The referred “matter” necessarily defined the scope of the special investigation authorised by the NCA Act. Section 13(2)(a) of the NCA Act required that a notice referring a matter for investigation “shall describe the general nature of the circumstances or allegations constituting the relevant criminal activity”. Section 14(2)(a) contained an equivalent requirement in relation to State referrals. The two applicants in A 1 at first instance were served with notices and a summons to attend before the NCA. They each contended that the references to the NCA under s 13 and s 14 of the NCA Act were invalid because the “matters” that had been referred for investigation were not sufficiently described in them. Merkel J first identified (at 478 — 479) that strict compliance with s 13 and s 14 of the NCA Act was required in order for the references (and, hence each notice and summons) to be valid. His Honour then expressed the issue to be decided as follows (A 1 at first instance at 479):

However, instead of requiring a precise specification of the matter referred for investigation the legislature opted for a requirement of a general statement in relation to the matter in the manner set out in s 13(2) or s 14(2). As ‘generality’ involves questions of degree the requirement raises the question: ‘How general is general?’.

48    Merkel J resolved that question in a passage now relied upon by the applicant in the present case (at 480):

… The purpose of the requirement is to enable a witness summoned to ascertain the existence, source and extent of the authority and power of the NCA to require his or her

(a)    attendance at the hearing;

(b)    answers under compulsion at the hearing to questions considered by the NCA to be relevant to the special investigation.

. . .

In my view the notice of reference must enable the NCA and the witness to ascertain, albeit in a general way, the limits of the authority of the NCA to conduct the investigation and also to determine, or at least form a view as to, whether the matters being inquired into at the hearing are relevant or capable of being considered to be relevant to the investigation.

49    His Honour further held (at 484) that the referral notices did not comply with the requirements of s 13 and s 14 of the NCA Act, properly construed. In so concluding, his Honour noted (at 482 — 483) that the requirements set out in s 13 and s 14 were expressed in a way that permitted of no exceptions and that the NCA Act contained no provision for the recipient of a summons (or, for that matter, a court exercising powers on judicial review) to ascertain the “matter” referred for investigation from any source other than a referral notice issued under s 13 or s 14.

50    The decision in A 1 at first instance was overturned on appeal, although Merkel J’s general observations about the construction of s 13 and s 14 remained undisturbed: National Crime Authority v A 1 (1997) 75 FCR 274 (A 1) (Black CJ at 276 – 278, von Doussa and Sundberg JJ at 294 — 295).

51    The issue of construction raised on the present ground of review is not the same as that raised before Merkel J.

52    Section 28(3) of the ACC Act requires that a summons set out, as far as is reasonably practicable, the general nature of the matters in relation to which the recipient of the summons is to be questioned. The requirement is expressed in similar terms to the requirement imposed by s 13 and s 14 of the NCA Act. Consistent with what was said in A 1 at first instance (and approved on appeal), the purpose of s 28(2) and (3) of the ACC Act is to enable the recipient of a summons to ascertain, in a general way, the limits of the authority of the examiner to conduct the examination and also to identify whether the matters being inquired into at the hearing are relevant or capable of being considered to be relevant to the special investigation.

53    However, the contention presently under consideration involves something quite different. It is alleged that either s 24A(1) or (2) or s 28(1) required that the Summons set out whether the examination was (relevantly) a post-charge examination. Section 24A contains no such express requirement. Nor does s 28(1). In the circumstances, the applicant’s reliance on the passage from Merkel J’s judgment to which I have referred is misconceived. Whereas Merkel J was concerned with the proper construction of the express words of a statutory provision imposing an essential condition, the applicant before me submits that there exists a mandatory condition arising not by express words but by necessary intendment. The applicant in effect submits that s 28 of the ACC Act should be construed as containing additional words of limitation.

54    In Taylor v Owners — Strata Plan No 11564 (2014) 253 CLR 531, French CJ, Crennan and Bell JJ said (at [38] – [40]):

38.    The question whether the court is justified in reading a statutory provision as if it contained additional words or omitted words involves a judgment of matters of degree. That judgment is readily answered in favour of addition or omission in the case of simple, grammatical, drafting errors which if uncorrected would defeat the object of the provision. It is answered against a construction that fills ‘gaps disclosed in legislation’ or makes an insertion which is ‘too big, or too much at variance with the language in fact used by the legislature’.

39.    Lord Diplock’s three conditions (as reformulated in Inco Europe Ltd v First Choice Distribution) accord with the statements of principle in Cooper Brookes and McColl JA was right to consider that satisfaction of each could be treated as a prerequisite to reading s 12(2) as if it contained additional words before her Honour required satisfaction of a fourth condition of consistency with the wording of the provision. However, it is unnecessary to decide whether Lord Diplock’s three conditions are always, or even usually, necessary and sufficient. This is because the task remains the construction of the words the legislature has enacted. In this respect it may not be sufficient that ‘the modified construction is reasonably open having regard to the statutory scheme’ because any modified meaning must be consistent with the language in fact used by the legislature. Lord Diplock never suggested otherwise. Sometimes, as McHugh J observed in Newcastle City Council v GIO General Ltd, the language of a provision will not admit of a remedial construction. Relevant for present purposes was his Honour’s further observation, ‘[i]f the legislature uses language which covers only one state of affairs, a court cannot legitimately construe the words of the section in a tortured and unrealistic manner to cover another set of circumstances’.

40.    Lord Diplock’s speech in Wentworth Securities laid emphasis on the task as construction and not judicial legislation. In Inco Europe Lord Nicholls of Birkenhead observed that even when Lord Diplock’s conditions are met, the court may be inhibited from interpreting a provision in accordance with what it is satisfied was the underlying intention of Parliament: the alteration to the language of the provision in such a case may be ‘too far-reaching’. In Australian law the inhibition on the adoption of a purposive construction that departs too far from the statutory text has an added dimension because too great a departure may violate the separation of powers in the Constitution.

(Footnotes omitted)

55    To similar effect, Gaegler and Keane JJ said (at [65]):

Statutory construction involves attribution of legal meaning to statutory text, read in context. ‘Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning ... But not always’. Context sometimes favours an ungrammatical legal meaning. Ungrammatical legal meaning sometimes involves reading statutory text as containing implicit words. Implicit words are sometimes words of limitation. They are sometimes words of extension. But they are always words of explanation. The constructional task remains throughout to expound the meaning of the statutory text, not to divine unexpressed legislative intention or to remedy perceived legislative inattention. Construction is not speculation, and it is not repair.

(Footnotes omitted)

56    Bearing those principles in mind, there are at least three reasons why an implied requirement of the kind contended for by the applicant does not arise.

57    First, where (as here) the requirements of s 28(2) and (3) of the ACC Act are satisfied, it will be possible for the recipient of the summons to ascertain:

(1)    the subject matter of the examination;

(2)    whether there exists a sufficient relation between the subject matter of the examination and the matters falling within the scope of the special investigation authorised by the determination; and

(3)    whether there exists a relation between the subject matter of the summons and the subject matter of any offences with which the recipient is or may imminently be charged and that are as yet unresolved.

58    Second, the fact that the legislature has made express provision in s 28(3) of the ACC Act for the provision of general information on the face of the summons tells strongly against the implication of a mandatory but unstated requirement of the more specific kind contended for by the applicant.

59    Third, although the power to issue the summons is pre-conditioned by compliance with s 28(1)(d) of the ACC Act, the summons is not the only source by which the recipient of the summons (or, for that matter, a court exercising powers of judicial review) may ascertain whether the pre-condition was enlivened and satisfied at the time that the summons was issued: see s 28(1A).

60    If am wrong in determining that the ACC Act imposes no requirement that a summons issued under s 28(1) specify whether an examination is a post-charge examination, I would in any event find that the Summons issued to the applicant fairly identifies itself as a post-charge summons. The Summons expressly refers to the Examiner being satisfied that it is reasonably necessary for the purposes of the relevant ACC special investigation to issue the summons notwithstanding that the applicant has been “charged with a relevant offence”. Viewed objectively, the content of the Summons would make it clear to a person of ordinary intelligence that the Examiner proceeded on the basis that the applicant had been charged with an offence so as to enliven a requirement that he be satisfied of the matters specified in s 28(1)(d) of the ACC Act.

61    The first contention fails.

The second contention

62    The second contention must fail for similar reasons.

63    The Court had before it the written reasons prepared by the Examiner in accordance with s 28(1A) of the ACC Act, albeit heavily redacted in accordance with an unchallenged claim for public interest immunity. The applicant did not seek to make good this ground of review by reference to the written reasons and he has not discharged his onus in respect of it.

The third contention

64    The third contention is that the Examiner “failed to be satisfied that the examination was either” a pre-charge, post-charge, pre-confiscation or post-confiscation examination. No oral or written submissions were advanced in support of this ground, except for a reference to the fact that the Summons does not specify on its face that it bears the character of a post-charge summons. The absence of such a statement does not make the contention good.

65    In any event, as I have mentioned, the Summons itself contains a clear statement evidencing the Examiner’s satisfaction of the matters specified in s 28(1)(d) of the ACC Act. That statement plainly supports an inference that the Examiner did indeed satisfy himself that the examination was a post-charge summons. The applicant has pointed to no evidence capable of rebutting that inference.

GROUNDs 2 to 5

66    Ground 2 is expressed at [27] – [30] of the ASOC as follows:

Non-compliance with s 28(1) of the Act

27.    The Examiner failed to comply with the requirements of section 28(1)(c) of the Act.

28.    In the alternative, the Examiner acted unreasonably in determining that it was reasonable in all the circumstances to summons the Applicant.

29.    The Examiner failed to comply with the requirements of section 28(1)(d) of the Act.

30.    In the alternative, the Examiner acted unreasonably in determining pursuant to section 28(1)(d) of the Act that it was reasonably necessary for the purposes of the relevant special ACC investigation to summons the Applicant.

67    The Summons on its face contains an express statement that the Examiner was satisfied that it was reasonable in all of the circumstances to summons the applicant. It also contains an express statement to the effect that the Examiner was satisfied that the issue of the Summons was reasonably necessary for the purpose of the relevant special investigation, even though the applicant had been charged with a “relevant offence”.

68    Although the Examiner recorded reasons for his determination that it was reasonable in all the circumstances to summons the applicant, the whole of the reasons on that topic form the subject of a claim for public interest immunity. Similarly, the whole of the Examiner’s reasons for determining that it was reasonably necessary for the purposes of the relevant special investigation to summons the applicant are redacted. The respondents’ public interest immunity claims were not challenged by the applicant. Nor did the applicant advance any written or oral submissions in support of this ground of review.

69    In XCIV Wigney J identified (at [69]) two “significant hurdles” facing the applicant in that case in respect of a contention that a statutory requirement to the same effect as that prescribed in s 28(1)(c) was not complied with:

. . . First, the requirement is not that it is objectively reasonable to issue the Summons. It is only necessary that the examiner is satisfied that it is. Second, the evidence here demonstrates that the examiner was so satisfied. He records that fact in the Summons itself and in the Reasons. There is nothing to cast any doubt on the examiner’s statements that he was satisfied that it was reasonable in all the circumstances to issue the Summons.

70    The present applicant faces the same hurdles.

71    Insofar as it is alleged that an inference of non-compliance should be drawn from the breadth of the subject matter of the Summons, that inference does not arise, for the same reasons given below in connection with the 2013 instrument itself. The applicant otherwise points to no material capable of supporting the contention that the Examiner did not lawfully form the state of mind required by s 28(1)(c) and (d) of the ACC Act, the existence of which the Examiner expressly asserts on the face of the Summons itself.

72    By Ground 3 it is alleged that the Summons is invalid for non-compliance with s 28(3) of the ACC Act: ASOC [39] – [42]. The non-compliance is said to arise because the Summons does not set out as far as practicable the general nature of the matter in relation to which the applicant was to be questioned. The description of the matters in respect of which the applicant was summoned to give evidence, as expressed in [4] of the Summons, is said to be impermissibly broad. It is also said that the proviso in s 28(3) of the ACC Act could not apply so as to excuse the Examiner from giving a more elaborate and detailed description of the subject matter of the examination.

73    The description of the matters in respect of which the applicant was to be questioned is not impermissibly broad. Although expressed in a general way, the degree of generalisation is permitted by s 28(3) of the ACC Act. The applicant’s pleaded contention, as far as it can be understood in the absence of written or oral submissions, involves a misconstruction of the proviso contained in s 28(3): it wrongly assumes that the Examiner must give as precise description of the subject matter of the examination as can be done without prejudicing the effectiveness of the special investigation. That assumption is inconsistent with the plain words of s 28(3). The provision requires only that the summons “set out the general nature of the matters in relation to which the recipient of the summons is to be questioned”, and that requirement does not apply in circumstances where giving such a general description would prejudice the effectiveness of (in this case) the special investigation. In other words, the ACC Act contemplates that there may be cases in which it will not be mandatory to set out even the general nature of the matters. A general description of the matters is the maximum that the ACC Act requires, not the minimum. Accordingly, it is not to the point that the Examiner could have given a more detailed and elaborate description.

74    The Summons complies with s 28(3) of the ACC Act, construed consistently with the similar provisions considered by Merkel J in A 1 at first instance and the Full Court in A 1.

75    It should be noted that no attempt has been made by the applicant to make good the contention that non-compliance with s 28(3) of the ACC Act would necessarily result in invalidity. The concluding words of s 28(3) would suggest that it would not. It is, however, unnecessary to determine that issue.

76    Ground 4 is expressed at [43] of the ASOC as follows:

43.    The Summons does not comply with s 28(2) of the Act (and is consequently invalid) in that it:

43.1.    recites that it is issued for the purposes of a special ACC investigation being conducted by the ACC; and

43.2.    contains a notation that, pursuant to s 28(2) of the Act, a copy of the ACC Board’s determination that ‘the investigation’ is a special investigation is attached as Annexure A (which annexure comprises the 2013 instrument);

but does not comply with the implicit requirement of s 28(2) that it be clear that the special investigation in aid of which the examination is to be held is the special investigation purportedly authorised by the 2013 instrument.

77    Once again, no written or oral submissions were advanced in support of this ground of review. The applicant has not shown that, as a matter of construction, an “implicit requirement” of any such kind arises. The two circumstances recited at [43.1] and [43.2] of the ASOC in any event make it clear that the examination is for the purposes of an investigation authorised by, and determined to be a special investigation by, the Board of the ACC. Ground 4 is rejected.

78    Ground 5 is expressed at [56] of the ASOC as follows:

In the alternative, if the 2013 instrument is valid, in issuing the Summons, the Examiner failed to have regard to a relevant consideration, namely, whether notwithstanding the terms of the 2013 instrument, the particular federally relevant criminal activity to which reference was made in paragraph 4(b) of the Summons continued to constitute activity in respect of which ordinary police methods of investigation were not likely to be effective in permitting the laying of charges against offenders.

79    Once again, the applicant advanced no written or oral submissions in support of the proposition that the Examiner was required to take into account the matters referred to in this ground. The proposition is inconsistent with the text, structure and purpose of the ACC Act. The Board was required, before making the 2013 instrument, to determine that ordinary police methods of investigation were not likely to be effective. For present purposes I proceed on the basis that the word “effective” means “effective to permit the laying of charges against offenders” as identified by Hayne and Bell JJ in X 7. The ACC Act imposes no express requirement upon an examiner to make any like determination at the time of issuing a summons pursuant to s 28(1) of the ACC Act. Nor, in my opinion, does any such obligation arise by necessary intendment. The Board of the ACC is comprised of the very persons the legislature has considered to be best placed to give meaningful and informed consideration to the effectiveness of ordinary police methods: the Commissioners of Police (or equivalently ranked person) of the Commonwealth and States and Territories. Had Parliament intended that the investigative powers of the ACC be preconditioned so critically in the manner suggested by the applicant, it could have and would have used express words to that effect, as it has done in respect of the power conferred on the Board in s 7C(3).

GROUND 6

80    The 2013 instrument is said to be invalid as and from the commencement of the Amending Act because it was no longer a determination “made in conformity with the then prevailing legislative preconditions for the existence of a valid [d]etermination”: Applicant’s Written Submissions [23] – [25]. Relatedly, it is submitted that the transitional provisions (extracted at [25] — [26] above) fail to retrospectively provide for the Board to have considered the relevant statutory criteria as amended and that “the transitional provisions do not deem or convert” the 2013 instrument into one that conforms with s 7C(3) as amended: Applicant’s Written Submissions [58].

81    These submissions should be rejected.

82    The amendments to s 7C(3) introduced by the Amending Act did not affect the previous operation of the ACC Act or anything duly done under it: s 7(2)(b) of the Acts Interpretation Act. Accordingly, where the Board has duly determined an investigation to be a special investigation in the exercise of the power under s 7C(3) prior to 28 July 2015, the operation of that determination remains unaffected by the amendments to s 7C(3) introduced by the Amending Act, provided that nothing in the ACC Act or Amending Act provides otherwise.

83    Nothing in the transitional provisions to the Amending Act or the ACC Act otherwise provides. The effect of the transitional provisions is that the amendments to s 7C(3) only apply to determinations made after 28 July 2015. It is true that the transitional provisions do not “retrospectively provide for the Board to consider” the matters specified in s 7C(3) as amended in relation to all determinations previously made. The applicant is correct in that regard. However, the absence of any such transitional provision does not assist him. If there had been such a transitional provision, then there might be some cause to say that s 7(2)(b) of the Acts Interpretation Act 1901 (Cth) should not apply.

84    An array of additional challenges to the validity of the 2013 instrument are summarised in the applicant’s written submissions as follows:

45.1.    The Board failed to consider whether ordinary police methods of investigation are likely to be effective as required by section 7C(3) of the Act as it stood at the time of the making of the determination.

45.2.    Further, the Board failed to consider whether ordinary police methods of investigation are likely to be effective as required by section 7C(3) of the Act as amended, either when making the determination or in making the 2016 instrument.

45.3.    In the alternative, the Board acted unreasonably in determining pursuant to section 7C(3) of the Act that ordinary police methods of investigation into the matters relating to federally relevant criminal activity the subject of the special investigation were ineffective, and in the making the 2016 instrument.

45.4.    The determination fails to comply with the statutory requirements of section 7C(4) of the Act.

45.5.    The determination and the 2016 instrument are invalid because the Board failed to exercise their discretion consistently with the policy and objects of the Act.

(Footnotes omitted)

85    I should add that it was also submitted that the 2013 instrument is beyond power because it is so broad that it “relates to any form of criminal activity by any suspect”. Particulars of that argument are given at ASOC [64] – [73]. The broad effect of all of these submissions is that the 2013 instrument is impermissibly broad in its scope and that it was otherwise ultra vires the ACC Act.

86    These additional challenges to the validity of the 2013 instrument may be shortly disposed of. I am satisfied that the applicant’s contentions have been previously (and repeatedly) rejected by this Court: XCIV (Wigney J); LX v Commonwealth of Australia [2016] FCA 441; (2016) 338 ALR 667 (LX) (Besanko J); XX v Australian Crime Commission (No 3) (2016) 150 ALD 495 (XX) (Perry J). The applicant has not addressed the reasoning adopted in those authorities so as to demonstrate that they are either inapplicable or plainly wrong: Hicks v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 757 at [75] (French J). In the absence of a submission to the effect that the authorities are plainly wrong (and, if so, how so) I do not propose to embark upon what would be a lengthy expedition through, or exposition about, the decided cases. I have considered the authorities and am not satisfied that they are plainly wrong. It is appropriate that I follow them. Accordingly, I reject the challenges in Ground 6 to the extent that they relate to the validity of the 2013 instrument as originally made.

87    I should note that the applicant impugns the validity of the 2013 instrument both in its original form and also as amended, or purportedly amended, by the 2016 instrument. It is said that the breadth of the subject matter of the investigation, if not impermissible in respect of an investigation of limited duration, is nonetheless impermissible in respect of an investigation that may continue for all time. I do not consider that the extended duration of the investigation has the effect of expanding its subject matter or otherwise operates so as to render the authorities to which I have referred inapplicable. The challenges to the indeterminate length of the investigation are otherwise dealt with in the context of Ground 8 below.

GROUND 7

88    It is alleged that the Summons is invalid because it was not accompanied by an operative determination when it was served: ASOC [44] – [53]. This ground depended for its success on my acceptance of that part of Ground 6 which concerned the effect of the Amending Act on the 2013 instrument. I have found that the 2013 instrument which accompanied the Summons was not inoperative at the time that the Summons was served. The Summons complied with s 28(2) and (7) of the ACC Act at the time that it was served.

89    It is further contended that the Examiner “acted unreasonably in determining that he was exercising power for the purposes of a special ACC investigation”: ASOC [54]. I interpret that allegation to be one to the effect that the exercise of the Examiner’s power was legally unreasonable in the sense explained by the High Court in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (Li). No attempt is made to particularise how the Examiner’s decision to issue the Summons is so affected, except perhaps to implicitly repeat the allegations in ASOC [44] – [53]. The claim of unreasonableness appears to have been made as an un-particularised fall-back position without regard to how the principles stated in Li might apply (if at all) in the particular circumstances of the case. The applicant has not discharged his onus of making good the pleaded allegation.

GROUND 8

90    The applicant’s challenge to the validity of the 2016 instrument involves a number of overlapping contentions. They turn to some extent on the application and construction of certain provisions of the Acts Interpretation Act.

91    Section 33(3) of the Acts Interpretation Act relevantly provides:

(1)    Where an Act confers a power or function or imposes a duty, then the power may be exercised and the function or duty must be performed from time to time as occasion requires.

...

(3)    Where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws) the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.

92    Section 11B of the Acts Interpretation Act provides that every Act amending another Act must be construed with the other Act as part of the other Act. That provision applies equally to instruments amending other instruments: s 46(1)(a) of the Acts Interpretation Act.

93    Assuming these provisions do apply to the ACC Act, their combined effect is that where an amendment is made to an instrument made under the ACC Act, the amending instrument is to be construed with the original instrument as if a part of it.

94    The application of the Acts Interpretation Act, or any provision of it, is subject to there being an intention to the contrary: Acts Interpretation Act, s 2. The parties are in dispute both as to whether s 33(3) of the Acts Interpretation Act applies to the ACC Act and, if so, as to its meaning and effect.

The contentions

95    The applicant submits that the Board was not empowered by s 33(3) of the Acts Interpretation Act to make the 2016 instrument because the coming into operation of the Amending Act (particularly the amendments to s 7C(3)) meant that the power to amend could not be exercised in the like manner and subject to like conditions applicable at the time of the making of the 2013 instrument. The 2016 instrument was said to be “incapable of extending the determination in circumstances where the criteria for making of such a [d]etermination had changed”: Applicant’s Written Submissions [19].

96    Alternatively, the applicant submits that the ACC Act, on its proper construction, does not empower the Board to authorise an investigation of indefinite or perpetual duration in any event or otherwise to determine such an investigation to be a special one. There being no principal power to make such an authorisation or determination, the submission goes, the amendment power cannot be used to achieve the same result.

97    Finally for present purposes, it is alleged that the 2016 instrument is invalid because the Board, when issuing the instrument:

(1)    failed to consider at all whether ordinary police methods of investigation are likely to be effective;

(2)    alternatively, arrived at a conclusion on that issue that was so unreasonable no reasonable decision-maker could have arrived at it; and

(3)    failed to comply with s 7C(4) of the ACC Act.

98    It appears to be accepted that prior to the making of the 2016 instrument the Board adopted a practice of limiting the authorisation of an investigation for a period of one year, and then extending that period from year to year as the occasion required. The 2016 instrument is the first (or at least the first known to the Court) issued by the Board having the effect or purported effect of authorising an investigation without a temporal limit. There is no case decided by this Court upholding the validity of such an instrument, nor is there any authority determining such an instrument to be ultra vires the ACC Act or otherwise invalid. The respondents nonetheless submit that the effect of Finn J’s decision in X and other authorities support a conclusion that the 2016 instrument was made in the valid exercise of the Board’s powers.

The decision in X

99    As in the present case, the applicant in X was served with a summons under the ACC Act requiring her to attend at an examination for the purpose of a special investigation into federally relevant criminal activity. The summons was, at the time it was served, accompanied by two instruments. The first was an instrument by which the Board authorised the ACC to investigate federally relevant criminal activity “until 31 May 2004” and determined that the investigation so authorised was a special investigation. Like the 2013 instrument in the present case, the instrument purported on its face to constitute both an authorisation made pursuant to s 7C(1)(c) and a determination made pursuant to s 7C(1)(d) and s 7C(3). It was referred to by Finn J as the Authorisation and Determination. The temporal limitation on the investigation appeared under the heading “Authorisation”.

100    The second instrument purported to amend the Authorisation and Determination by deleting the words “until 31 May 2004” and inserting the words “until 31 May 2005”. The amending instrument contained no statement to the effect that before making the amendment the Board had considered whether, for the purposes of s 7C(3) of the ACC Act as then in force, ordinary methods of police investigation were likely to be ineffective.

101    The applicant challenged the validity of the summons on two grounds relating to the amending instrument. First, she alleged that by making that instrument the Board had authorised a new investigation for a different period which, in turn, had to be determined to be a special investigation before the power to conduct an examination and to issue a summons at any time in the extended period could be triggered. As the Board had not (she alleged) complied with the requirements for making a determination under s 7C(3) before issuing the amending instrument, the summons was said to be invalid. Second, she alleged that a determination could not be amended by the exercise of the implied power under s 33(3) of the Acts Interpretation Act in any event because the use of the amendment power in that way would undercut or circumvent important safeguards in the ACC Act, including the condition in s 7C(3).

102    Finn J made the initial observation (at [19]) that:

. . . notwithstanding the variety of prescriptions in the ACC Act governing the making of a determination that an investigation is to be a special investigation, the ACC Act does not impose, or make provision for the imposition of, time limitations on the duration of such investigations. It is unsurprising, given the subject matter of such investigations, that the legislature did not seek so to circumscribe the ACC. For whatever reason — and this cannot on the material before me be a proper subject of inference — in this matter the Board chose to impose a time limit on the investigation.

103    The ACC’s investigative function, his Honour later said, “seems hardly one suited to performance by inflexible timetables” (at [36]).

104    His Honour said (at [23]) that the Authorisation and Determination established an investigation having a particular character, ie. that of a special investigation. His Honour continued:

What the Amendment purported to do was to extend the period for which that investigation was authorised. Assuming the Board had power to extend that investigation, the only amendment it needed to make was to extend the period specified in paras 4(a) and (b) of the Authorisation and Determination for which the special investigation was authorised. This is what it did.

105    The critical question was whether the Board had the power to extend that investigation. After holding (at [27] – [29] and [30] – [32]) that the Authorisation and Determination was an “instrument” within the meaning of s 33(3) of the Acts Interpretation Act and that s 33(3) extended to powers to make instruments of an executive character, Finn J said (at [33] – [34]):

33.    The question, though, remains whether the ACC Act manifests a ‘contrary intention’ which precludes the s 7C powers being construed as including a power to repeal, rescind, etc an authorisation and determination. In my view, it does not.

34.    It is important to recall that the s 33(3) power is exercisable in like manner and subject to the like conditions as the original power to make, etc an instrument. I emphasise this limitation for this reason. Much that underpinned the applicant’s challenge to the validity of the Amendment proceeded on the assumption that the safeguards built into the ACC Act when making, and after the making of, a special investigation determination would be put at nought if the special investigation could later be varied in any way.

106    Finn J held that the exercise of the implied amendment power involved no change to the reason for, or to the scope and purpose of, the investigation. It was, his Honour held (at [35]), the one and the same special investigation. It did not cease to bear the status of a special investigation merely because of its extended time frame and it was therefore unnecessary that the Board comply with the condition in s 7C(3) of the ACC Act when making the amending instrument. His Honour said (at [36] — [37]):

36.    . . . I regard it as a form of word play divorced from practical reality to suggest that every such extension involves in fact the establishment of a separate and distinct, a new, investigation.

37.    I do not wish to be taken as suggesting that in no circumstances will the safeguards relied upon by the applicant have to be complied with if a variation of, or amendment to, an authorised special investigation is to be validly made. If the amendment changes the reason, scope or purpose of what was previously authorised and determined such that a new determination is being made in substance, that amendment would, as s 33(3) dictates, need to be exercised ‘in the like manner and subject to the same conditions’ as a determination under s 7C(1)(d) of the ACC Act.

107    All of that, in my opinion, formed a necessary part of Finn J’s reasoning in determining the controversy in X and cannot be regarded as merely obiter. Moreover, I do not consider his Honour’s construction of the ACC Act and its interplay with the Acts Interpretation Act to be plainly wrong. The application of the Acts Interpretation Act to the powers and functions conferred under s 7C of the ACC Act was subsequently confirmed by the Full Court in P.

108    The applicant contended not so much that X was wrongly decided, but that it was to be distinguished both factually and legally from the issues arising in the present case. For present purposes, there are three differences in the factual and legal context to be considered. First, the effect of the amending instrument in X was to extend the period of the investigation authorised by the original instrument by a period of one year, whereas the 2016 instrument in the present case removed or purported to remove a temporal limitation on the investigation such that it was authorised or purportedly authorised to continue indefinitely. Second, unlike the situation in X, the pre-conditions to the exercise of the substantive power in s 7C(3) changed between the making of the 2013 instrument and the making of the 2016 instrument. Third, the amending instrument in X did not contain a statement to the effect that the requirements of s 7C(3) of the ACC Act had been observed when the amending instrument was made, whereas the 2016 instrument does contain a statement to that effect.

109    It may be accepted that if the Board did not have a substantive power to authorise an investigation of indefinite duration or to determine such an investigation to be special, then no implied amendment power could be exercised to achieve that impermissible result. The issue is whether the differences between the present case and X are such that the conclusion reasoning of Finn J in that case should not be applied on this application.

110    A logical consequence of the decision in X is that the Board has the power to re-exercise its implied amendment power from time to time so as to extend the period of an investigation by a year, each year, in perpetuity. In that way, the duration of a special investigation may be extended, for practical purposes indefinitely, without compliance with the condition in s 7C(3), provided always that the amendment does not have the substantive effect of changing the investigation’s reason, scope or purpose. Putting aside for a moment the amendments to s 7C(3), it would, as the respondents correctly submitted, be a surprising construction of the ACC Act if it permitted the Board to extend the period of an investigation from year to year indefinitely, but did not permit the Board to make a determination in relation to an investigation that may continue indefinitely unless and until revoked by the Board.

111    The submission that there exists an implied requirement to fix a date by which an investigation must end is difficult to reconcile against other authorities of this Court concerning the nature and scope of the powers of the Board and the ACC.

112    The Full Court in A1 held that the requirement that a referral under s 13 of the NCA Act give a general description of the circumstances or allegations constituting the relevant criminal activity did not include a requirement that the particular subject matter to be investigated be limited in time. Although the legal context in which A1 was decided is different, the remarks of the Full Court concerning the nature of powers of the Board and the ACC in my view apply equally to the questions of construction now under consideration here: compare LX at [30] (Besanko J); XCIV at [105] – [113] (Wigney J).

113    Von Doussa and Sundberg JJ observed that the investigations that may be authorised by the NCA were unlike those conducted by ordinary police forces and did not necessarily proceed from a discovered offence. Their Honours continued (at 289):

It is an investigative power which is under consideration, and it is not possible to define a priori the limits of an investigation which might properly be made. The power should not be narrowly confined.

114    As I have already mentioned, the NCA Act in force at that time empowered the NCA to refer for investigation “relevant criminal activity”. That phrase was defined under s 4(1) of the NCA Act to mean “any circumstances implying, or any allegations, that a relevant offence may have been or may be being, committed”. The definition of “relevant criminal activity” in the ACC Act as presently in force is more expansive. It includes any allegation that a relevant crime may in the future be committed.

115    Consistent with what was said in A1, this Court has repeatedly rejected the proposition that the Board can only authorise a special investigation into “specific and confined criminal activity”: XX at [50] – [51] (Perry J); XCIV at [101] – [104] (Wigney J). In LX, Besanko J said (at [30]) that the following reasoning in A1 (at 294), applied with equal force to special investigations under the ACC Act:

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.

116    Although that passage related to the scope of the authority of the NCA as an investigative body, rather than the scope of the authority of a Commonwealth Minister under the NCA Act to refer a matter to the NCA for investigation, Besanko J nonetheless applied the same reasoning in determining that the 2013 instrument (being the same instrument impugned in this case) was not impermissibly broad in its subject matter.

117    All of the above authorities support a conclusion that there is no necessarily implied requirement to fix an end date upon an investigation authorised under s 7(1)(c) and determined to be special under s 7(1)(d) and s 7C(3).

118    The implied requirement was nonetheless said by the applicant to arise because, among other things, the provisions of the statute providing for the oversight of the ACC and the Board would otherwise be circumvented or undermined.

119    As I have mentioned, the functions of the ACC include the provision of reports to the Board on the “outcomes” of a special investigation: ACC Act, s 7A(d). Whilst it is open to construe that function as one that could only be discharged at the end of a finite period of investigative activity, that narrow construction would not be consistent with the purposes of the ACC’s investigative functions. The purpose is to gather criminal intelligence, being information that might assist the understanding, disruption and prevention of the kind of criminal activities to which the statute might lawfully extend: see X 7 at [72] and [144] (Hayne and Bell JJ) and the amendments to s 7C(3) introduced by the Amending Act. That, in my view, has been a purpose of the ACC Act as a whole, both before and after the coming into force of the Amending Act. The ACC Act is to be construed in a manner that best achieves that purpose or object, even if it is open to an alternative construction: s 15AA of the Acts Interpretation Act.

120    Once the purpose of the ACC’s investigative function is understood in that way, the function of the ACC to report on the “outcomes” of investigations should be broadly understood as one that may be continually fulfilled during the course of an ongoing investigation. Outcomes in that sense are outcomes that may be continually arrived at in connection with wide, ongoing and ambulatory subject matter of the kind permissibly referred to in the 2013 instrument.

121    The Board’s obligations under s 59 of the ACC Act should also be mentioned:

(3)    Subject to subsection (5), the Chair of the Board or the CEO:

(a)    shall, when requested by the Inter-Governmental Committee to furnish information to the Committee concerning a specific matter relating to an ACC operation/investigation that the ACC has conducted or is conducting, comply with the request; and

(b)    shall when requested by the Inter-Governmental Committee to do so, and may at such other times as the Chair of the Board or the CEO thinks appropriate, inform the Committee concerning the general conduct of the operations of the ACC.

(4)    Subject to subsection (5), the Chair of the Board shall furnish to the Inter-Governmental Committee, for transmission to the Governments represented on the Committee, a report of the findings of any special ACC operation/investigation conducted by the ACC.

122    The obligations in s 59(3) are not triggered by an investigation coming to an end. Moreover, I do not consider the word “findings” in s 59(4) to imply the existence of an obligation on the Board to fix an end date for an investigation. The obligation is one that is to be fulfilled as the occasion requires. The broad and ambulatory subject matter of the investigation lawfully authorised under the 2013 instrument is such that “findings” may be continuously arrived at and elaborated upon. Consistent with the purposes of an ACC investigation and the ACC Act as a whole, the word “findings” should not be construed so as to refer only to findings made at the end of a finite period.

123    Although the IGC has the power to revoke a determination within 30 days of it being made, that of itself would not lead to the conclusion that an investigation may only be authorised to continue for a fixed period: see s 7 of the ACC Act.

124    I do not accept that the imposition of a requirement of the kind contended for is necessarily to be implied by the oversight provisions to which I have referred, nor by any other provision referred to by the applicant as an oversight or safeguard provision.

125    It is then submitted that s 7C(3) of the ACC Act itself evinces an intention that a determination cannot be made in respect of an investigation of indeterminate length because it was not humanly possible to determine that ordinary police methods of police investigation into relevant criminal activity are not likely to be effective at understanding, disrupting or preventing such activity “forever”. The submission assumes that the condition specified in s 7C(3) requires that the unlikelihood of effectiveness be considered to persist throughout the authorised period of the investigation.

126    In P the Full Court held (at [22]) that the applicant in that case had wrongly assumed that a time limit imposed on an investigation necessarily reflected the period during which the Board considered that ordinary police powers would not be effective for the purposes of s 7C(3) of the ACC Act. The respondents submit that it follows from what was said in that case that the Board is not required by s 7C(3) to consider that ordinary police methods will not be effective for the entire duration of an investigation. I agree.

127    If I am wrong in that regard, I would not consider it to be impossible to comply with the condition in s 7C(3) of the ACC Act in respect of an investigation of indeterminate length in any event. That is because the Board is not required to determine that ordinary police methods of investigation would forever be ineffective as a matter of certain and objective fact. It is required only to determine that ordinary police methods of investigation would be unlikely to be effective. A determination as to the unlikelihood of effectiveness may be arrived at by, for example, concluding that ordinary and ineffective police methods of investigation are unlikely at any time in the future to change in respect of the subject matter to be investigated. There is nothing impossible about that.

128    Accordingly, the Board’s function under s 7C(1)(c) may be performed to authorise an ongoing investigation and its power under s 7C(3) may be exercised to determine such an investigation to be a special investigation.

129    Two questions remain to be considered: first, whether the power under s 33(3) of the Acts Interpretation Act may be exercised so as to delete from an instrument issued pursuant to s 7C(1)(c) a time limit previously imposed on an investigation and, second, whether the coming into force of the Amending Act between the original instrument and the amending instrument might affect the outcome in the present case.

130    The first question should be answered yes. I can discern no reason, as matter of construction, why the amendment power could not permissibly be used in that way. The implied amendment power is to be regarded as co-extensive with the principal power.

131    It is appropriate that I apply the same test formulated by Finn J in X to resolve the second question. Consistent with the approach in X, where an amendment varying the duration of an investigation does not change the reason for or scope or purpose of the investigation, the obligation to observe the condition in s 7C(3) will not arise: no new investigation will have been authorised and therefore no new determination pursuant to s 7C(3) (whether in its amended form or not ) would be required in respect of it.

132    In my view, nothing in the 2016 instrument changed the reason for, or the scope or purpose of, the investigation in the relevant sense. The 2016 instrument did not change the subject matter of the investigation as specified in Sch 1 to the 2013 instrument (as amended by and read together with the 2016 instrument). Nor did the 2016 instrument change the purposes of the investigation specified in cl 9. The criminal activities to which the instrument refers (identified in cl 8) remain unchanged. It is the same investigation and continues to bear the character of a special investigation as originally determined in the 2013 instrument. All that has occurred is that a temporal limit on the continuance of the same special investigation has been removed.

133    I should add that the additional words in s 7C(3) introduced by the Amending Act do not, of themselves, support the conclusion that the reason for or scope or purpose of the investigation has necessarily changed. The unchanged purposes of the investigation continue to coincide with the overarching objectives of the ACC Act itself, including the understanding, prevention and disruption of the criminal activities falling within its scope.

134    In the circumstances, no occasion arose, whether directly under s 7C(3) or by the application of s 33(3) of the Acts Interpretation Act for the Board to consider and determine the issue specified in s 7C(3).

135    The applicant then submits that a new determination was in fact made in any event, as evidenced by the terms of the 2016 instrument itself. I reject that submission. The words of the 2016 instrument equally suggest that the Board subjectively (but wrongly) considered itself to be bound by s 33(3) of the Acts Interpretation Act to observe the condition under s 7C(3) when making the amendment referred to in cl 4 of the 2016 instrument. In the preceding paragraphs I have been concerned to identify whether the Board was so bound by the ACC Act on its proper construction. I have determined that it was not. The terms of the 2016 instrument cannot be used as an aid to the construction of the ACC Act in that regard.

136    It is to be borne in mind that the Board is under no obligation to include on the face of an instrument issued pursuant to s 7C(3) a statement to the effect that it has complied with the conditions of its exercise: P at [22]. The Board’s statement in the 2016 instrument that the investigation authorised by the instrument “remains” a special investigation was, in my view, one that was unnecessary to include. It does not, of itself, imbue the instrument with the character of a fresh determination so that an obligation to observe the condition under s 7C(3) was triggered (whether directly or by the operation of s 33(3) of the Acts Interpretation Act).

137    It follows from what I have said that the amended condition in s 7C(3) by the Amending Act did not apply to the making of the 2016 instrument. The amended provision would only apply in the event that the Board made, in substance, a new determination on or after the date that the amendment came into force. That the Amending Act does not apply in the circumstances does not mean that it has been impermissibly circumvented. It simply means that no occasion arises on the facts and the law for its application.

138    If I am wrong in determining that s 33(3) of the Acts Interpretation Act did not require the Board to comply with the condition in s 7C(3) of the ACC Act as amended, I would find that the Board did in any event comply with the condition. I would in that event have rejected the applicant’s contention that the Board either did not or could not reasonably have considered and determined the requisite issues. The contentions were largely founded on the impossibility argument I have previously rejected.

139    I would have held further that there was no requirement that s 7C(4) be complied with in the exercise of the amendment power. The applicant’s submissions in that regard ignored the requirement that the 2013 instrument and the 2016 instrument be read together.

GROUND 9

140    This ground is expressed at ASOC [57] – [63] as follows:

57.    Section 28(2) imposes a mandatory requirement that the summons be accompanied by a copy of the determination of the Board that the investigation into matters relating to federally relevant criminal activity is a special investigation.

58.    The Summons served on the Applicant was issued in respect of the 2013 Determination and authorised the Examiner to examine the Applicant in respect of the matters set out in the Summons and the 2013 Determination until 30 June 2016.

59.    The 2013 Determination did not authorise an examination of the Applicant pursuant to the terms of the Summons or at all post 30 June 2016.

60.    Given that the time for the conclusion of all investigations pursuant to the terms of the 2013 Determination has expired the Summons has also expired.

61.    In the circumstances the Examiner is now not authorised to examine the Applicant pursuant to the terms of the Summons.

62.    The 2016 instrument was incapable of extending the 2013 Determination in circumstances by which the criteria for making of such a Determination had changed.

63.    The 2016 instrument constituted a new determination.

141    I have rejected the contentions in the latter two paragraphs. An examiner of the ACC has the power to conduct an examination for the purposes of the particular special investigation in issue and there is no time limitation circumscribing the exercise of that power. The source of the power to conduct an examination for the purposes of that special investigation is to be found in s 24A of the ACC Act. An examiner may regulate the conduct of proceedings at an examination as he or she thinks fit: s 25A(1). The ACC, by its examiners, may do all things necessary to be done for or in connection with, or reasonably incidental to, the performance of its function of carrying out an examination: s 19 of the ACC Act. The power to summons a person under s 28 of the ACC Act is to be read together with all of those provisions, and particularly together with the indictable offence created by s 30(1). It provides:

30 Failure of witnesses to attend and answer questions

Failure to attend

(1)    A person served, as prescribed, with a summons to appear as a witness at an examination before an examiner shall not:

(a)    fail to attend as required by the summons; or

(b)    fail to attend from day to day unless excused, or released from further attendance, by the examiner.

142    The effect of the applicant’s submissions is that no legal consequence may befall him should he so fail to attend before the Examiner at any adjournment date after 30 June 2016. It must follow from that submission that the applicant could not be convicted of an offence if he so fails to attend. It is in that respect that the Summons is said to no longer have legal force - 30 June 2016 having come and gone - and is thereby “spent”. Supposing that submission to be correct, there would be nothing preventing an examiner from issuing a fresh summons now compelling his attendance at an examination. So much was acknowledged by the applicant’s Counsel, albeit subject to the Court rejecting all other grounds of review (as I have done).

143    The respondents submit that the applicant’s failure to attend in the circumstances I have described would constitute an offence against s 30(1) of the ACC Act. A number of observations may be made about that provision.

144    The offence created by s 30(1) may only be committed where a person has been served, as prescribed, with a summons to appear as a witness at an examination before an examiner. There are two alternate bases upon which such a person may be convicted of an offence. The first is a failure to attend as required by the summons: s 30(1)(a). The second is a failure to attend from day to day unless excused, or released from further attendance, by the examiner: s 30(1)(b). The second alternative recognises that an examiner, in the exercise of the general power to regulate proceedings, may adjourn examination proceedings to a day and time other than the initial day and time specified in the summons itself. An “adjournment” in this context is to be understood as the examiner excusing, for the purposes of s 30(1)(b), the witness from attending on each day and from day to day in the intervening period until the adjournment date.

145    The critical question is whether the applicant would contravene s 30(1) of the ACC Act if he failed to attend at an adjournment date beyond 30 June 2016. I confine my attention for present purposes to the physical elements of the offence created by s 30(1)(b). In my view, the physical elements will be complete in relation to a person where:

(1)    the person is someone who has been served, as prescribed by s 28(2) of the ACC Act, with a valid summons to appear as a witness before an examiner at an examination that the examiner has the power under s 24A to conduct;

(2)    the person fails to attend from day to day at the examination provided always that the examiner, on the relevant day(s), has the power under s 24A to conduct the examination; and

(3)    the person has not been excused or released from further attendance by the examiner.

146    As to the first of those elements, the contention that the applicant was not served “as prescribed” cannot be sustained. The Summons was accompanied by the 2013 instrument as in force on the day upon which the Summons was served. The amendments affected by the 2016 instrument did not come into force until 8 June 2016 and could not therefore have accompanied the Summons on the day it was served.

147    The applicant’s contention is that he is not compelled to attend beyond 30 June 2016 because that is the end date for the investigation referred to in the instrument that accompanied the Summons on the date that it was served. He has in fact since been served with the 2016 instrument but does not raise any alternative ground of review in connection with that event. His submission is that the power of the Examiner to examine him on a particular date is circumscribed by the Summons and its annexure. The submission is founded on a number of assumptions which I consider to be wrong.

148    The first is that no examination beyond 30 June 2016 could be conducted unless the applicant was first served a summons accompanied by what was described as the “new” determination. That assumption is wrong to the extent that it conceives of the 2016 instrument as both authorising a new investigation and as comprising a new determination. For the reasons I have already given, the instrument did neither. It did not comprise a “determination” required to accompany a summons in accordance with s 28(2) of the ACC Act.

149    The second assumption is that the substantive power to adjourn the examination is also sourced in and confined by the content of the Summons itself. I do not agree. A summons issued pursuant to s 28 of the ACC Act is to be understood as the legal mechanism by which a person may be legally obliged to attend before an examiner on the first date specified in it. The offence created by s 30(1)(a) of the ACC Act serves to enforce that initial obligation. Together, s 28 and s 30(1)(a) serve the purpose of securing a person’s initial attendance. It is in that respect that the Summons served on the applicant on 29 February 2016 is, one might say, “spent”: it has done its work because it secured the applicant’s initial attendance before the Examiner on 15 March 2016. The applicant’s protestations that he did not “submit to the jurisdiction” of the Examiner were of no legal effect. The language of submission to jurisdiction is inapposite in the statutory context.

150    The applicant was required to attend as required by the Summons on that day and his actual attendance meant that he did not commit an offence under s 30(1)(a). Thereafter, it is s 30(1)(b) of the ACC Act in and of itself that compels the applicant’s attendance from day to day unless excused provided that the relevant “day” is one in respect of which the Examiner has the substantive power under s 24A to conduct the examination. Whilst that power persists, the default position is that the applicant must attend. It is only if the applicant is excused that s 30(1)(b) would not apply.

151    The applicant has in fact been excused by the Examiner from attending from day to day until a date beyond 30 June 2016, which is not presently known to the Court. The substantive power of the ACC to conduct a special investigation (and hence the Examiner’s power to conduct an examination for the purpose of it) is not, as a matter of law, circumscribed by that time frame. The power of the Examiner to resume the examination on a date beyond 30 June 2016 cannot be affected by the form of the Summons: its source and scope is to be found in the ACC Act itself. The recipient of a summons accompanied by the 2013 instrument in its unamended form before 8 June 2016 who is not subsequently served with the 2016 instrument might well be heard to say in his or her defence that he or she did not know that the examination could lawfully continue or would in fact continue beyond 30 June 2016. It seems to me that those circumstances might bear on the question of whether the mental elements of the offence are fulfilled. But there is no evidence that the applicant is in that position and he has not in any event sought relief on that basis. It is enough to say that the circumstance of the applicant being served before 8 June 2016 with a summons accompanied by the unamended 2013 instrument would not affect, as a matter of law, the completion of the second physical element of the offence.

152    The third physical element of the offence created by s 30(1)(b) will be satisfied if the applicant then fails to attend on the validly fixed adjournment date.

153    Although I have determined that the Summons is “spent”, I have done so in a limited context that does not assist the applicant. I would not, in all of the circumstances, grant the applicant the declaratory relief sought on the Amended Originating Application, namely a “Declaration that the Summons is spent”. A declaration expressed so bluntly would not truly reflect the respective rights and obligations of the parties, particularly the applicant’s prima facie obligation to attend before the Examiner unless excused or released.

154    That disposes of the remaining ground of review.

155    Before concluding, it is appropriate that I briefly expand on my reasons for rejecting the applicant’s approach to the construction of the ACC Act as a whole, and particularly in relation to the issues arising under Grounds 8 and 9. The tenor of Counsel’s submissions was that the powers of an examiner under the ACC Act represent a significant and undesirable incursion into the civil liberties of the individual. Much of the submissions urging a narrow construction of the powers of the Board and the Examiner proceeded from that premise. It is to be accepted that a statutory provision ought not to be construed so as to interfere with fundamental common law rights except by clearly expressed words: X7 at [24]. The statutory provisions in issue on this application are nonetheless to be construed so as to prefer an interpretation that would best achieve the purpose or object of the statute: s 15AA of the Acts Interpretation Act. The statutory purpose or object is to be discerned from the words of the enactment itself, not by reference to what is or is not considered by a court to be desirable in a policy sense: X7 at [93] to [96] (Hayne and Bell JJ). The principle of construction upon which the applicant relied cannot be used as a means to read into the legislation words of limitation that would not achieve, and indeed might inhibit the achievement of, the clear purpose of the ACC Act.

156    The whole of the application should be dismissed.

Associate:

Dated:    29 March 2017