FEDERAL COURT OF AUSTRALIA

ZX v Commonwealth of Australia [2018] FCA 1617

ORDERS

THE COURT ORDERS THAT:

1.    The application for judicial review is dismissed.

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

REASONS FOR JUDGMENT

WHITE J:

1    This is a judgment on an application for judicial review.

2    At the heart of the application is the applicant’s challenge to the continuing ability of an examiner of the Australian Crime Commission (the ACC) to require him to submit to a compulsory examination pursuant to s 24A of the Australian Crime Commission Act 2002 (Cth) (the ACC Act).

3    Since 1 July 2016, the ACC may also be known as the Australian Criminal Intelligence Commission (ACIC) but it is convenient in these reasons to continue referring to it as “the ACC”.

4    The summons pursuant to s 28(1) of the ACC Act requiring the applicant to attend for examination was served on him on 2 October 2015. It was accompanied, as required by s 28(2) of the ACC Act, by a copy of a determination by the Board of the ACC authorising the ACC to undertake an intelligence operation relating to specified criminal activity and determining that the operation was a “special operation”. This was the Australian Crime Commission Special Operation Authorisation and Determination (Outlaw Motor Cycle Gangs) 2013 (the 2013 Determination).

5    By an instrument made on 8 June 2016 (the Australian Crime Commission Special Operation Authorisation and Determination (Outlaw Motor Cycle Gangs) Amendment No 1 of 2016 (the 2016 Instrument)) the Board of the ACC amended the 2013 Determination. The 2016 Instrument was expressed to come into effect immediately upon its making. As is apparent, that was after the issue and service of the summons on the applicant.

6    The applicant’s Amended Originating Application for judicial review indicates that he seeks review of:

(1)    the validity of the summons;

(2)    the validity of the decision of the third respondent (an examiner appointed under s 46B(1) of the ACC Act) to issue the summons;

(3)    the validity of the 2013 Determination;

(4)    the validity of the 2016 Instrument; and

(5)    the decision of the Board of the ACC to issue the 2013 Determination and the 2016 Instrument.

7    The application indicates that the applicant seeks relief under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act) and pursuant to s 39B of the Judiciary Act 1903 (Cth).

8    The grounds contained in the applicant’s Further Amended Statement of Claim (the FASC) filed only two weeks before the hearing are extensive and discursive (extending over some 57 paragraphs). They indicate that the applicant seeks judicial review on 12 different grounds, with some of those grounds supported by particulars which themselves contain additional bases of alleged invalidity. The 12 grounds are:

(a)    non-compliance with s 24A(1) and (2) of the ACC Act (FASC [24]-[36]);

(b)    non-compliance with s 28(1)(c) of the ACC Act (FASC [38]);

(c)    non-compliance with s 28(1) of the ACC Act (FASC [40]-[47]);

(d)    non-compliance with s 28(2) of the ACC Act (FASC [48]);

(e)    non-compliance with s 28(3) of the ACC Act (FASC [49]);

(f)    non-compliance with s 28(7) of the ACC Act (FASC [50]-[58]);

(g)    unreasonableness (FASC [37], [39], [77.2], [79]-[82], [84]);

(h)    invalidity of the 2013 Determination (FASC [59], [70]-[74.1]);

(i)    the 2013 Determination not in force at time summons issued (FASC [60], [74.2]);

(j)    failure to consider a relevant consideration (FASC [61]);

(k)    the summons had expired on 30 June 2016 (FASC [62]-[69]);

(l)    invalidity of the 2016 Instrument (FASC [84]-[85]).

9    It seemed inherently improbable that a summons served by the ACC on a witness could be invalid for all the many different reasons pleaded in the FASC. The applicant’s outline of submissions provided nine days before the hearing addressed very few of the grounds in the FASC and did not, in any event, identify the grounds in the FASC to which the submissions were directed. Instead, the applicant’s written outline addressed five “central contentions”. Four of all those contentions concerned the validity of the 2016 Instrument. The remaining “central contention” was that s 28(2) of the ACC Act required service of the 2016 Instrument on the applicant. The outline of submissions did not indicate the relationship of the contentions with the subject matter of the application for review, with the pleaded grounds of review, nor the effect on those grounds if the contentions were upheld.

10    The five “central contentions” were as follows:

(1)    the 2016 Instrument should be characterised as a new determination, rather than as an amending instrument;

(2)    the making of the 2016 Instrument amending the 2013 Determination was not within the Board’s powers;

(3)    because the 2016 Instrument was a new determination, s 28(2) of the ACC Act required that it be served on the applicant with the summons, and it had not;

(4)    by reason of amendments to the ACC Act, the matters which the ACC Board was required to consider in 2016 when issuing a determination were different from those applying in 2013, with the effect that the 2016 Instrument had to be a new determination; and

(5)    the ACC Act does not contemplate the ACC being authorised to undertake investigations of indefinite duration, and one of the effects of the 2016 Instrument was to remove an existing temporal limitation on the ACC’s authority to undertake the special operation.

11    As is apparent, there is a considerable degree of repetition and overlap in these contentions.

12    Although the applicant’s counsel acknowledged that the outline of the submissions provided in advance of the hearing did not address several of the grounds, she said that none was abandoned. Despite that, counsel did not make submissions in support of many of the grounds.

13    One ground can be put to one side at the outset. With respect to the challenge to the validity of the 2013 Determination (ground (h) in the above list), counsel acknowledged that a corresponding challenge had been determined adversely to the applicants in three proceedings, being LX v The Commonwealth [2016] FCA 441; XX v Australian Crime Commission (No 3) [2016] FCA 437, (2016) 335 ALR 180; and XCIV v Australian Crime Commission [2015] FCA 586, (2015) 234 FCR 274. Counsel did not advance any submission that those decisions were plainly wrong or that they should be distinguished. That being so, I consider that the usual principles of comity indicate that the decisions on the issue of validity in LX, XX and XCIV should be followed. Ground (h) need not be considered further.

14    The delivery of judgment in this matter was deferred, at the parties’ request, until after the delivery of judgment by the Full Court in XXVII v The Commonwealth of Australia [2018] FCAFC 59. That occurred on 13 April 2018. An application for special leave to appeal was dismissed by the High Court on 12 September 2018: XXVII v The Commonwealth of Australia [2018] HCASL 277. Counsel for the respondents accepted the Court’s invitation to provide further submissions following the delivery of the judgment by the Full Court but counsel for the applicant did not. No further submissions were provided by either party after the refusal of special leave to appeal to the High Court.

15    For the reasons which follow, I consider that the application should be dismissed.

The Australian Crime Commission

16    It is appropriate to commence with a description of the ACC and its functions.

17    The ACC Act establishes the ACC. It has the functions specified in s 7A of the ACC Act. Those functions include the collection, correlation, analysis and dissemination of criminal information and intelligence (subpara (a)); the maintenance of a national database of that information and intelligence (subpara (a)); the undertaking, when authorised by the Board of the ACC, of “intelligence operations” (subpara (b)) and the investigation, when authorised by the Board, of matters relating to “federally relevant criminal activity” (subpara (c)).

18    The term “federally relevant criminal activity” is defined in s 4 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.

The term “relevant criminal activity” used in this definition is defined in s 4 to mean “any circumstances implying, or any allegations, that a relevant crime may have been, may be being, or may in the future be, committed against a law of the Commonwealth, of a State or of a Territory”. The term “relevant crime” is in turn defined to mean “serious and organised crime” or “Indigenous violence or child abuse” (s 4).

19    Criminal activity has the character of being “federally relevant criminal activity” if the relevant crime is an offence against a law of the Commonwealth or of a Territory, or an offence against a law of a State which has a “federal aspect” (s 4). The concept of a federal aspect of a State offence is elaborated in s 4A.

20    By s 7C of the ACC Act, the Board of the ACC may authorise the ACC to undertake “intelligence operations” or to “investigate” matters relating to federally relevant criminal activity (subs (1)(e)). The Board may, in addition, determine that certain operations are “special operations” (subs (2)) and that certain investigations are “special investigations” (subs (3)). A determination of either kind must describe the general nature of the circumstances or allegations constituting the federally relevant criminal activity, state that the relevant crime or crimes are, or include, an offence or offences against a law of the Commonwealth or of the State or Territory, and set out the purpose of the operation or investigation (s 7C(4)).

21    The designation of an intelligence operation or an investigation as a special operation or a special investigation, as the case may be, means that coercive powers may be exercised by the ACC in undertaking the operation or investigation. Search warrants may then be issued and executed under ss 22 and 23 of the ACC Act, an examiner may require a person to attend for examination under Div 2 of Pt II of the ACC Act, a person may be dealt with for contempt of the ACC in respect of such examinations (ss 34A-34E), and persons who are served with a summons to attend for examination may be ordered to surrender their passport (s 24).

22    In the present case, it is the provisions concerning “special operations” which are pertinent. Section 7C(2), as in force on 4 September 2013, provided:

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

23    As can be seen, s 7C(2) required the Board to consider whether methods of collecting the criminal information and intelligence that did not involve the use of powers in the ACC Act had been “effective”, before designating an operation as a special operation.

24    The ACC Act was amended by the Law Enforcement Legislation Amendment (Powers) Act 2015 (Cth) (the Powers Amendment Act) which came into operation (relevantly) on 28 July 2015. By cl 3 of Sch 1 of the Powers Amendment Act, s 7C(2) was amended so as to require the Board, before determining that an intelligence operation is a “special operation”, to consider whether methods of collecting the criminal information and intelligence which did not involve the use of the powers in the ACC Act had been effective “at understanding, disrupting or preventing the federally relevant criminal activity to which the intelligence operation relates”.

25    Similarly, s 7C(3) was amended so as to require the Board, before determining that an investigation is a special investigation, to 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”.

26    Clause 37 in Sch 1 to the Powers Amendment Act provided that the amendments to s 7C(2) and (3) applied to determinations made under those provisions on or after the commencement of that Part of the Schedule (28 July 2015).

27    It is evident that the amendments to s 7C(2) and (3) were made by the Parliament to overcome the effect of the decision of the High Court in X7 v Australian Crime Commission [2013] HCA 29; (2013) 248 CLR 92. In X7 v ACC, the High Court, by majority (Hayne and Bell JJ with whom Kiefel J substantially agreed) had held that s 7C(3) should be understood as requiring the Board of the ACC to consider not only the question of whether ordinary police methods of investigation into the matters were likely to be effective but also whether those methods were not likely to be effective. Hayne and Bell JJ continued at [146]:

… 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. …

That is to say, Hayne and Bell JJ considered that the ACC could execute its function of investigating matters relating to federally relevant criminal activity with the additional powers only when the Board of the ACC had determined that ordinary police methods were not “likely to be effective” to lead to the laying of charges.

28    In the Explanatory Memorandum provided by the Minister for Justice in connection with the Second Reading Speech for the Powers Amendment Bill, the Minister for Justice said:

this amendment is necessary to more fully articulate the purposes for which the ACC and examiners exercise their coercive powers. The amendment is intended to explain that these powers are to be exercised in support of the ACC’s broad role in understanding, disrupting or preventing serious and organised criminal activity. This item is intended to counteract the suggestion that the only purpose for which the ACC may be conducting a special operation is to assist in the laying of charges against one or more people. While special operations may ultimately result in the laying of such charges, their purpose is significantly broader. They allow the ACC to inquire proactively into the whole context in which organised crime groups operate, contributing to the disruption of ongoing criminal enterprises and the elimination of systemic vulnerabilities.

29    Section 7C(4) of the ACC Act, which was not amended by the Powers Amendment Act, provides:

Further details

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

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

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

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

30    When the ACC, in carrying out an “ACC operation/investigation”, obtains evidence of an offence against a law of the Commonwealth or of a State or Territory which would be admissible in a prosecution for the offence, its CEO must give that evidence to the Attorney-General of the Commonwealth or the State, or to a relevant law enforcement authority (s 12(1)).

31    I have already alluded to the range of powers available to the ACC when undertaking a special operation or a special investigation. Amongst other things, examiners appointed under Div 2 of Pt 3 of the ACC Act may require the production to them of specified information or documents (ss 20, 21 and 21A) and examiners or police officers on the staff of the ACC may obtain and execute search warrants (s 22).

32    The examination of persons by examiners is an important means by which the ACC may obtain information relevant to the discharge of its functions. An examiner appointed pursuant to s 46B of the ACC Act may summons a person to appear before the examiner to give evidence and to produce such documents or things as are referred to in the summons (s 28). Before issuing a summons, the examiner must be satisfied (relevantly) that it is reasonable in all the circumstances to do so (s 28(1)(c)). The power to issue a summons cannot be exercised except for the purposes of a “special ACC operation/investigation” (s 28(7)). An examiner’s reasons for issuing a summons must be recorded in writing before or at the same time as the issue of the summons, (s 28(1A)). A summons issued under s 28 must be accompanied by a copy of the determination of the Board that the intelligence operation is a special operation or that the investigation is a special investigation, as the case may be (s 28(2)). The determination must be a valid determination: P v Board of Australian Crime Commission [2006] FCAFC 54, (2006) 151 FCR 114 at [26]; B v Australian Crime Commission [2011] FCA 1046 at [22]. It is an offence for persons summonsed to appear at an examination not to attend as required, to refuse or fail to take an oath or affirmation as required, to refuse or fail to answer a question which they are required to answer, and to refuse or fail to produce a document or thing which they were required by the summons to produce (s 30).

The 2013 Determination

33    The 2013 Determination was made by resolution of the Board of the ACC on 4 September 2013. Clause 4 of the 2013 Determination contains the grant of authority by the Board to the ACC:

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

(Emphasis added)

34    The term “specified criminal activity” used in cl 4 is defined in cl 3 to mean the “federally relevant criminal activity” described in Sch 1. It is not necessary for the purposes of this decision to outline that activity.

35    Clause 5 of the 2013 Determination contained a reporting requirement as follows:

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 intelligence operation at or before the first Board meeting after 30 June 2016.

(Emphasis added)

36    Clause 6, under the heading “Determination”, contained the Board’s determination that the intelligence operation it was authorising was a “special operation” and included its consideration of the matters required by s 7C(2) as then in force, as follows:

6    Determination

Pursuant to paragraph 7C(1)(d) and subsection 7C(2) of the Act, the Board:

(a)    has considered whether methods of collecting criminal information and intelligence relating to specified criminal activity that do not involve the use of powers in the Act have been effective;

(b)    determines that methods of collecting the criminal information and intelligence relating to specified criminal activity that do not involve the use of the powers in the Act have not been effective; and

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

37    As is apparent, the 2013 Determination provided that the ACC could undertake the special operation only until 30 June 2016. In addition, it required the ACC to report the outcome of the operation to the Board at or before the first Board Meeting after 30 June 2016.

The 2016 Instrument

38    The amendments affected by the 2016 Instrument are contained in cl 3 under the heading “Amendment of Australian Crime Commission Special Operation Authorisation and Determination (High Risk and Emerging Drugs No. 2) 2013”. However, this is a mis-description as the body of cl 3 indicates that the amendment was to the 2013 Determination. The applicant did not contend that anything turned on that mis-description for present purposes.

39    The first amendment effected by the 2016 Instrument was to delete the words “until 30 June 2016” in cl 4 of the 2013 Determination. The second amendment was to insert the words “and 30 June each year thereafter” after the date “30 June 2016” appearing in cl 5 of the 2013 Determination.

40    The effect of these amendments was to remove the temporal limitation on the intelligence operation contained in the 2013 Determination and to substitute a requirement that the ACC provide annual reports to the Board on the outcomes of the operation.

41    The third amendment effected by the 2016 Instrument was to insert after cl 6(c) of the 2013 Determination the following:

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

(i)    considered whether methods of collecting criminal information and intelligence that do not involve the use of powers in the Act have been effective at understanding, disrupting or preventing the specified criminal activity;

(ii)    determined that methods of collecting criminal information and intelligence that do not involve the use of powers in the Act have not been effective at understanding, disrupting or preventing the specified criminal activity; and

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

As can be seen, these parts of the determination were directed to the requirements of the amended s 7C(2).

The second central contention – the Board’s power to amend the 2013 Determination

42    It is convenient to address first the second of the applicant’s “central contentions”, namely, that it was not within the Board’s power to amend the 2013 Determination by the 2016 Instrument.

43    The ACC Act does not contain any express provision authorising the Board to amend an authorisation that the ACC undertake an intelligence operation or a determination that an operation be a special operation. However, s 33 of the Acts Interpretation Act 1901 (Cth) (the AI Act) provides:

33 Exercise of powers and performance of functions or duties

Powers, functions and duties may be exercised or must be performed as the occasion requires

(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.

…

Power to make instrument includes power to vary or revoke etc. instrument

(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.

…

44    In X v Australian Crime Commission [2004] FCA 1475; (2004) 139 FCR 413, Finn J held that s 33(3) empowered the ACC Board to amend a determination so as to extend the period for which a special investigation was authorised:

[35]    It clearly is the case that the legislature intended to, and did, impose safeguards by way of limiting conditions on the making of a special investigation determination. But once such a determination has been made and the special investigation as here has been authorised for a designated period, a later decision merely extending the period of that investigation involves no change to the reason for, or to the scope and purpose of, the investigation. It remains the same special investigation. The change is to the time in which that investigation is to be conducted. … .

…

[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.

(Emphasis added)

45    Finn J also held that a determination by the ACC Board under the ACC Act is an “instrument” for the purpose of s 33(3):

[29]    A “determination” under the ACC Act is not simply a decision evidenced in writing as the applicant suggests. It is a form of writing with prescribed elements. It both records the fact of a determination and it is designed to carry the ACC Act into effect in the sense that it can trigger the ACC’s access to the Act’s coercive powers. Its legal significance is manifest in the safeguards surrounding the making of a determination. It is an “instrument” for the purposes of s 33(3).

46    It has also been accepted in other authorities that s 33(3) authorises, subject to its terms, the amendment by the Board of the ACC of a determination or authorisation made pursuant to s 7C of the ACC Act: P v Board of ACC at [31]; XXVII v The Commonwealth of Australia [2018] FCAFC 59 at [38], [91], [171]-[173].

47    The applicant submitted that the power vested by s 33(3) of the AI Act had not authorised the Board to amend the 2013 Determination. The change in the “pre-conditions” for the exercise of the power effected by the Powers Amendment Act meant, it was submitted, that the s 33(3) power was not available. It was not easy to identify the basis on which this submission was made.

48    On one view, the submission seemed to be that the amendment to s 7C(2) effected by the Powers Amendment Act meant that the Board could not, in 2016, exercise the power to amend “in the like manner and subject to the like conditions” as applied at the time when the 2013 Determination was made. The applicant sought to sustain a submission to that effect by reference to [37] of the reasons of Finn J in X v ACC, set out earlier.

49    In my opinion, [37] in X v ACC cannot reasonably be understood as supporting such a proposition. Finn J was saying only that, if an amendment to a determination was such as to amount, in substance, to the making of a new determination, it would have to be made in the like manner and subject to the same conditions as a determination under s 7C(1)(d). His Honour was not directing his remarks to the effect of an amendment to the authorising legislative provision after an initial determination had been made. It is to be remembered that there had been no legislative change to s 7C(1)(d) between the making of the original determination and the amendments which were under consideration in X v ACC. That being so, it is not surprising that Finn J did not address that circumstance.

50    On another view, the submission seemed to be that, by reason of the amendments effected by the Powers Amendment Act, the 2013 Determination had ceased to be “operative” – see [56]-[57] of the FASC. A submission to that effect cannot be sustained. The Powers Amendment Act did not address the operation of existing determinations, expressly or implicitly. Following the commencement of the Powers Amendment Act, the 2013 Determination continued in operation as its original term had not expired.

51    There may be an issue as to whether the “manner” and “conditions” with which the exercise of the power to amend conferred by s 33(3) must conform are those required by the authorising legislation at the time the power was originally exercised, or those required by it at the time of the amendment.

52    There was some consideration of this issue in XXVII v The Commonwealth. That case involved circumstances and issues very similar to the present, albeit with respect to a special investigation pursuant to s 7C(3) of the ACC Act. As in this case, the ACC Board had authorised an investigation in 2013, with a term to conclude on 30 June 2016. By an instrument made on 8 June 2016, the Board had amended its 2013 determination in the same manner as it did in the present case.

53    In XXVII v The Commonwealth, counsel for the applicant submitted that the Board of ACC had been required, when making the amendment to the 2013 determination under consideration in that case, to consider the different matters introduced into s 7C(3) by the Powers Amendment Act. That submission was upheld by Bromwich J, who said:

[192]    It is true that consideration of s 7C(3) in its new form does not meet precisely the requirement in s 33(3) of the Acts Interpretation Act that the determination power be exercised in the “like manner” and “subject to the like conditions” that governed the 2013 instrument. However, to make the amendment power subject to the amended condition rather than the original condition is a necessary and appropriate way to harmonise the operation of s 7C(1)(d) and s 7C(3) of the ACC Act with the terms of s 33(3) of the Acts Interpretation Act. A legislative change to the content of the safeguard could otherwise be set at nought by an amendment or variation of substance which ignores the change to new terms of the condition, and worse, as in this case, does so for an indefinite period of time. The legislature should not be found to have permitted its will to be sidestepped in that way in relation to s 7C(3), whether that be to make the mandatory consideration more, or less, stringent. ...

[193]    For these reasons, the Board was therefore quite correct to take into account the mandatory consideration in the amended version of s 7C(3) in determining that the investigation to be authorised without a stipulated end date was to continue to be a special investigation. …

(Emphasis in the original)

54    Although Wigney J said that he agreed generally with the reasons of Bromwich J, he did in his separate reasons say that the Board’s power to amend the 2013 Instrument was required to be exercised in the like manner and subject to the same circumstances “as the power to make the 2013 Instrument in the first place”, at [95]. Dowsett J did not address the issue.

55    Section 33(3) provides in effect (and relevantly) that the inclusion in an Act of a power to make an instrument be understood as including a power to amend the instrument, and requires that that power be exercised in the like manner and subject to the like conditions applying to the power to make instruments of that kind.

56    Section 33(3) is properly understood, in my view, as operating with respect to the statutory grant of power to make an instrument, and not with respect to its exercise. It is the power to make an instrument which is to be construed as including a power to amend. That is to say, a power to amend instruments is an incident of the power to make them, and not an incident of the exercise of that power. In my view, this makes it more natural to understand the like manner and conditions to which s 33(3) refers as those attaching to the grant of power which are applicable from time to time. If there has been a change in the manner and conditions attaching to the power, it is those applicable at the time of the amendment with which there must be compliance. In that way, the repository of the power must conform with the contemporaneous conditions attaching to an exercise of the power and neither the repository nor those affected by the instrument will be benefited or disadvantaged by the use of superseded mandatory requirements.

57    For these reasons, I respectfully agree with the conclusion of Bromwich J on this issue.

58    Since 28 July 2015, s 7C in its amended form has vested the ACC Board with the power to authorise an intelligence operation and to designate such an operation as a special operation. It is accordingly the manner and conditions attaching to the exercise of the power contained in s 7C in its amended form which are applicable to amendments to determinations, whether those determinations were made before or after the Power Amendment Act came into operation.

Amendment and compliance with s 7C(2)

59    Several of the applicant’s submissions that the 2016 Instrument had been ineffective to amend the 2013 Determination rested on the reasoning of Finn J in X v ACC. One of the issues in that case was whether an amendment which extended the one year term of a special operation by a period of one year was valid. Finn J held that the amendment was authorised by s 33(3) of the AI Act.

60    As para [37] of the reasons in X v ACC (set out earlier in these reasons) indicates, Finn J seemed to proceed on the basis that the requirement in s 33(3) that the amending power be exercisable “in the like manner and subject to the same conditions (if any)” as applied to the power to make the instrument was applicable only if the amendment changed “the reason, scope or purpose” of that which had been previously authorised and determined. It is not immediately apparent why that should be so as, on its terms, s 33(3) of the AI Act applies to all exercises of the amending power, and not just amendments which have a significant effect.

61    In this respect, I respectfully agree with the reasons of Wigney J in XXVII v The Commonwealth:

[95]    … Once it is accepted that the 2016 Instrument purported to amend the 2013 Instrument, and that the Act does not confer on the Board an express power to amend an existing instrument authorising a special investigation, it must follow that the Board’s power to make the 2016 Instrument depended on the operation of s 33(3) of the Interpretation Act. … Section 33(3) does not say, in terms, that the power to amend in such circumstances need not be exercised in the like manner and subject to the like conditions if the amendment does not alter the reason, scope or purpose of the instrument being amended.

62    The consequence in my view is that when the Board made the 2016 Instrument amending the 2013 Determination, it was required to comply with s 7C(2) in its amended form, irrespective of whether the amendment changed the reason, scope or purpose of the 2013 Determination.

A change to “the reason, scope or purpose” of the operation

63    If the conclusion just expressed be wrong, it is necessary to address the applicant’s submission that the 2016 Instrument did alter the “reason, scope or purpose” of the 2013 Determination so that, on the reasoning of Finn J in X v ACC, the amending power had, nevertheless, to be exercised “in the like manner and subject to the like conditions” as the way in which a new decision may be made.

64    This question was also addressed in the analogous circumstances under consideration in XXVII v Commonwealth. As already noted, in that case, the Full Court was considering, amongst other things, the validity of an amendment to an authorised investigation of matters relating to federally relevant criminal activity. Section 7C(3) required the Board, before determining that an investigation be a special investigation, to 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”. The authorisation of the investigation had been made by the Board on 4 September 2013 and expressed to apply to 30 June 2016. As in the present case, the Board had, on 8 June 2016, amended the 2013 determination by removing the termination date of 30 June 2016 with an express statement that the investigation was to continue to a special investigation.

65    The Full Court (Wigney and Bromwich JJ, Dowsett J dissenting on this point) found that the removal of the temporal limitation with the consequence that the special investigation became one of indefinite duration, amounted to a change in “the reason, scope or purpose” of the special investigation. Wigney J reasoned as follows:

[97]    The effect of the 2016 Instrument was to extend or expand the range or operation of the special investigation. It changed the special investigation from one with a defined and confined period, to one which had no temporal limitation at all. Even if the amendment did not alter the general nature of the circumstances or allegations, or the purpose of the investigation, it plainly expanded its scope. It is immaterial that the Board may not have been required to impose a time limit in the first place. The fact is that it did. The amendment was far removed from the amendment considered in X v ACC, which simply extended the period of the investigation by 12 months.

66    Bromwich J said:

[187]    Put simply, it is one matter for the Board to determine that a given authorised investigation of 3 years’ duration is to be a special investigation. It may be a very different matter for the Board to determine that the same investigation in content, but without any stipulated end date, is to be a special investigation. It must therefore be accepted that a significant change to the duration of a special investigation is capable of constituting a change in its scope, thereby engaging the requirement in s 33(3) of the Acts Interpretation Act to observe the conditions attaching to the exercise of the determination power when considering an amendment or variation. Of course, the materiality of any change in duration, including the removal or absence of any stipulated duration, will also depend on the ambit of the reasons for, scope (apart from duration) and stated purpose of the investigation.

[188]    In the present case, the removal of the end date specified for an investigation that was already very wide-ranging was a material change in its scope because of that very breadth. …

67    In my view, although XXVII v The Commonwealth concerned a special investigation to which s 7C(3) applied and the present case concerns a special operation to which s 7C(2) applies, the reasoning of Wigney J and Bromwich J cannot be distinguished, and should be applied. I find therefore that, even if the Board was obliged to comply with s 7C(2) in making the 2016 Instrument in the present case only if it had the effect of altering the reason, scope or purpose of the 2013 Determination, that circumstance existed in this case.

68    The consequence again is that in making the 2016 Instrument, the Board was obliged to comply with the terms of s 7C(2) as amended. To this extent, the submission of the applicant succeeds.

Did the Board comply with s 7C(2) in making the 2016 Instrument?

69    Earlier in these reasons, I set out the paragraphs which the 2016 Instrument inserted after cl 6(c) of the 2013 Determination. In para [i], the Board said expressly that it had considered whether methods of collecting criminal information and intelligence which did not involve the use of powers in the ACC Act had been effective at understanding, disrupting or preventing the specified criminal activity. In para [ii], the Board said expressly that it had determined that methods of collecting criminal information and intelligence which did not involve the use of powers in the Act had not been effective at understanding, disrupting or preventing the specified criminal activity.

70    As is apparent, in these paragraphs, the Board used the terminology of s 7C(2). Another indication that the Board was addressing the s 7C(2) matters is the statement in the 2016 Instrument that it was made “under s 7C” of the ACC Act.

71    The applicant did not contend that these statements in the 2016 Instrument should not be taken at face value. Nor did the applicant adduce any evidence to support a conclusion that the Board had not had regard to those matters. That is to say, the applicant did not attempt to discharge the onus of proof on him. Accordingly, whichever of the two alternative bases outlined above required the Board to consider the s 7C(2) matters when making the 2016 Instrument, it is apparent that it did so.

72    Given the overlapping and repetitive content of some of the applicant’s central contentions, it will be necessary to address other aspects of the submissions later in these reasons. The above reasons indicate however, that the applicant’s contention that it had not been open to the ACC Board to amend the 2013 Determination by the 2016 Instrument should be rejected.

Was the 2016 Instrument a “new” determination?

73    The applicant’s first “central contention” was that the 2016 Instrument was a “new determination”, with the consequence that, in order for it to be a valid exercise of the Board’s power, it had to have been made in accordance with the requirements of s 7C of the ACC Act, as amended by the Powers Amendment Act. In many respects, this was not a separate contention, but only an aspect of the second.

74    The term “new determination” or an equivalent does not appear in s 7C. The applicant’s submission had its genesis instead in [38] of the decision of Finn J in X v ACC:

If I am incorrect in the view I take of the applicability of s 33(3) of the Acts Interpretation Act to the provisions of s 7C of the ACC Act on the grounds that the Authorisation and Determination and the Amendment are not “instruments”, I consider that s 33(1) of the Acts Interpretation Act would permit the Board of the ACC to extend the original Authorisation and Determination “as the occasion requires”, by making a new Authorisation and Determination having that effect howsoever the Board describes that new instrument. In so doing it would have to comply with the requirements of the ACC Act for making a new special investigation determination. ...

(Emphasis added)

75    The first indication that the 2016 Instrument was a “new” determination, counsel submitted, is that it described itself as a “determination”. Counsel relied for this submission on the insertions after cl 6(c), set out earlier and, in particular, the use in subparas (ii) and (iii) of those insertions of the words “determined” and “determines” respectively.

76    When the 2016 Instrument is read as a whole, this submission cannot be sustained. It is apparent that, in context, the Board used the words “determined” and “determines” to indicate that it had considered the matters required by s 7C(2), and the result of that consideration.

77    Further, on any reasonable view, the 2016 Instrument has the character of an amending document. Its heading describes itself as “Amendment No. 1 of 2016” to the 2013 Determination. That is repeated in cl 1 under the heading “Name of Instrument”. Clause 3 provides that the 2013 Determination “is amended as follows”. Next, as noted earlier, the Board recorded expressly that, before making “the amendment” it had considered the s 7C(2) matters. Finally, the Board recorded that it had determined that the intelligence operation “as amended” remained a special operation. These features make it obvious, considered objectively, that the Board was not intending to make a “new” authorisation of an intelligence operation or a “new” determination that the operation be a special operation.

78    The second matter on which counsel relied for the submission that the 2016 Instrument was “new” determination was the decision of the Full Court in Egglishaw v Australian Crime Commission (No 2) [2010] FCAFC 82; (2010) 186 FCR 393. In that case, a determination by the Board of the ACC made on 13 May 2003 had been later varied by a resolution of the Board made in December 2003. The only change effected by the December 2003 variation had been to replace the provision specifying the classes of persons who were participating in the special investigation. The summons served on Mr Egglishaw in early 2004 had been accompanied by the May 2003 determination, but not the December 2003 variation. The Full Court rejected the contention that this circumstance invalidated the service of the summons.

79    Counsel referred to the following statements of the Full Court:

[11]    The change to the classes of persons who were to participate in the special investigation had no material significance in relation to the persons involved in this special investigation.

…

[46]    It is common ground that the 2003 variation did not accompany the summons. The issue is whether the 2003 authorisation and determination, without the variation, was a copy of the determination within the meaning of s 28(2) of the Act, set out above.

…

[54]    The Court is satisfied, however, that in amending the class or classes of persons, the 2003 variation did not affect the determination that “the investigation into matters relating to federally relevant criminal activity is a special investigation” within the meaning of s 28(2). Having regard to the language of s 28(2) and to the purpose of the provision, we do not find that a recipient of the summons could be misled about the special nature of the investigation or other essential matters relevant to the determination because of the omission of the 2003 variation.

…

80    As is apparent, the Full Court in these passages was addressing the question of whether the service of the summons had been invalid by reason that it had not been accompanied by the 2003 variation.

81    Counsel’s submissions did not make apparent how these passages related to the submission that the 2016 Instrument in the present case was “new” determination. The Full Court in Egglishaw was not asked to address that question.

82    Further, unlike the position in Egglishaw, the summons served on the present applicant on 2 October 2015 could not have been accompanied by the 2016 Instrument, as it had not been made at that time.

83    As I raised with counsel, the question of whether the 2016 Instrument was a “new” determination seemed to be an artificial issue and a distraction. The ACC Act does not in terms raise a dichotomy between “new” and “non-new” determinations. The more critical question is whether the 2016 Instrument had been effective to extend the duration of the special operation authorised by the 2013 Determination and, for the reasons given earlier, I consider that it was.

84    I add that counsel did not raise any issue concerning the validity of the 2016 Instrument by reference to s 7C(4) of the ACC Act.

Third central contention – the complaint of non-compliance with s 28(2)

85    Section 28(2) of the ACC Act provides that a summons requiring a person to appear before an examiner at an examination must be accompanied by a copy of the determination of the Board that (relevantly) the intelligence operation is a special operation.

86    The applicant contends that the ACC did not comply with this mandatory requirement because a copy of the 2016 Instrument did not accompany the service of the summons on him on 2 October 2015. The Full Court in XXVII v The Commonwealth considered the same contention in the analogous circumstances under consideration in that case. The Full Court was unanimous in rejecting the contention: Dowsett J at [59]-[69]; Wigney J at [107]-[114]; and Bromwich J at [116]. Although the separate reasons on this issue differed in some respects, the differences are not presently material.

87    In my view, the reasons stated in XXVII v The Commonwealth for dismissing the submission concerning s 28(2) are indistinguishable from the present circumstances, and should be applied.

88    I add that, in my view, s 28(2) is directed to the requirements for service of a summons and refers implicitly to documents in existence at the time of that service. It cannot sensibly be understood as requiring the summons to be accompanied by a document amending a determination when the document did not exist at the time of the service.

89    Accordingly, the third “central contention” fails.

The fourth central contention

90    The applicant’s fourth central contention was stated as follows:

[T]he 2016 [Instrument] was in any event required to be a new determination because, by reason of the amendments to the ACC Act, the matters that the Board was required to consider when authorising a special operation had changed by virtue of the amendments to section 7C of the ACC Act which were made in 2015.

91    I set out verbatim the applicant’s oral submission in support of this contention:

The fourth contention that the applicant advances is that the 2016 [Instrument] was required … to be a new determination because, by reason of the amendments to the Act, the matters that the Board was required to consider had changed, and so the amending powers weren’t available to it. The Acts Interpretation Act power in s 33 is not meant to overcome a requirement to comply with relevant legislative amendments.

If the 2016 [Instrument] simply amended the previous document, then … the corollary of that – although it doesn’t appear to have been done in this case because the Board has actually considered the new statutory criteria – but if that was the nature of the power that [s] 33(3) gives, that could overcome the requirement to consider the new statutory power. And that’s why it submitted that the 2016 document cannot be an amending document, because the [s] 33 powers only apply if there’s no contrary intention. And there is no clear or contrary intention that an amendment to the relevant head of power in the Act. And that’s the reference to s 2 of the Acts Interpretation Act.

92    I addressed earlier in these reasons the substance of this submission concerning the effect of the Powers Amendment Act. The present submission should be rejected for the same reasons.

93    I note that the applicant’s counsel did not develop the submission that the ACC Act evidenced a contrary intention, making the application of s 33(3) of the AI Act inappropriate. The applicant’s submissions seemed to rest, inappropriately, on the view that the like manner and conditions to which s 33(3) refers are those attached to the power exercised by the Board in making the initial instrument, and not to the powers concerning the making of such instruments as in force at the time of the amendment.

The fifth central contention

94    The applicant’s final central contention was that the 2016 Instrument is invalid because it provided for the special intelligence operation to be “a perpetual operation”. The applicant’s counsel accepted that she used the word “perpetual” to mean “an operation of indefinite duration”.

95    A submission to the same effect was considered by the Full Court in XXVII v The Commonwealth and rejected: Dowsett J at [42]; Wigney J at [77]-[89]; Bromwich J at [203]-[205].

96    The reasons in XXVII v The Commonwealth are relevantly indistinguishable from the present case. Accordingly, the applicant’s fifth central contention fails.

Disposition of the application

97    At the commencement of these reasons, I set out the matters which the applicant wished to have reviewed and I summarised the grounds in the FASC. The applicant’s submissions did not address each of the five matters he sought to have reviewed. Most of his submissions concerned only the validity of the 2016 Instrument. The remaining submission concerned the requirements of s 28(2). These matters have been addressed in these reasons.

98    As the applicant did not advance any submissions concerning the remaining subjects of review, or matters giving rise to judicial review of them, whether under the ADJR Act or s 39B of the Judiciary Act, it is not necessary to address them in these reasons.

99    For similar reasons, it is not necessary to address the grounds of invalidity in respect of which the applicant did not provide any supporting submissions.

100    For the reasons set out earlier, the originating application for judicial review must be dismissed. I will hear from the parties with respect to any consequential matters.

Associate:

Dated:    29 October 2018