FEDERAL COURT OF AUSTRALIA

FAN19 v Australian Criminal Intelligence Commission [2021] FCA 100

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    Costs reserved.

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

Table of contents

REASONS FOR JUDGMENT

BANKS-SMITH J:

Introduction

1    The applicant was charged with serious drug offences, including being in possession of approximately 20kg of methylamphetamine, and at the time of the hearing in this proceeding was awaiting trial in the District Court of Western Australia.

2    After he was charged, the applicant was compulsorily examined before the Australian Criminal Intelligence Commission (ACIC) as part of an ACIC operation referred to as 'Project Baystone'.

3    The second respondent, Mr Lusty, conducted the examination. Mr Lusty authorised a member of the Western Australian Police Force (WAPOL), Detective Senior Constable Masterson, to be present during the examination.

4    Neither the applicant nor his legal representative knew that Officer Masterson was present at the examination. He was not in the examination room, but in a separate room.

5    Mr Lusty disclosed at the examination that the persons present were members of the staff of the Australian Crime Commission (ACC). The respondents contend that Officer Masterson, whilst a member of WAPOL, was also a member of the staff of the ACC and therefore, and having regard to certain statutory provisions, it was not necessary to make any disclosure of his presence to the applicant.

6    By this application, the applicant seeks review and declaratory relief under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act), or alternatively, s 21 of the Federal Court of Australia Act 1976 (Cth) and s 39B of the Judiciary Act 1903 (Cth). The applicant seeks review of Mr Lusty's decision to allow Officer Masterson to be present and Mr Lusty's decision not to reveal Officer Masterson's presence and status at the examination to the applicant. The applicant contends that Mr Lusty's decision was unlawful and in reckless disregard of his statutory duties. More generally, the applicant contends that he was denied the opportunity of a fair trial by reason of Officer Masterson's presence at the examination, a contention that he indicated he intended to pursue before the District Court.

7    Before proceeding further, I note that evidence was given by a number of members of WAPOL and with various designations. Apart from where they are first introduced, I will generally refer to them all as 'Officers' in these reasons for convenience.

The statutory context and instruments

Overview of the ACC

8    The ACC is established under Division 1 of Part II of the Australian Crime Commission Act 2002 (Cth) (ACC Act) (provisions of that Act are referred to as they were at the relevant time, being February 2018). Section 7 established the ACC. Section 7(2) provides that the ACC consists of:

(a)    the CEO; and

(b)    the examiners; and

(c)    the members of the staff of the ACC.

9    Pursuant to s 7(1A) the ACC may also be known by other names, including the ACIC. It now generally operates as the ACIC (as permitted by reg 8(b) of the Australian Crime Commission Regulations 2018 (Cth)), but can continue to be referred to as the ACC. The statutory provisions continue to use the acronym ACC, and accordingly it is convenient to refer to the ACC when discussing statutory provisions and powers. Otherwise, I will refer to the ACIC, consistent with the practice of the witnesses and counsel.

10    One of the ACC's functions is to investigate, when authorised by its Board, matters relating to 'federally relevant criminal activity': s 7A(c).

11    Section 7B provides for the establishment of the Board of the ACC, and prescribes its members (including the head of the police force of each State and Territory) and its chair (the Commissioner of the Australian Federal Police). By this section the Commissioner of WAPOL (Commissioner) is a member of the Board of the ACC.

Compulsory examinations and s 25A

12    Division 2 of Part II empowers the conduct of coercive examinations of witnesses.

13    Those coercive powers are vested in an 'examiner' under s 24A of the ACC Act. The examiner may conduct an examination only for the purpose of a special operation or investigation (s 24A and s 28(7) of the ACC Act). While the examiner is part of the ACC, the independence of the examiner is apparent from a number of features of the ACC Act. For example, the examiner is not a member of the Board of the ACC; an examiner is appointed by the Governor-General; and separate provision is made in the ACC Act for their remuneration and terms of employment: see generally LHRC v Deputy Commissioner of Taxation (No 3) [2015] FCA 52 at [39]-[41] (Perry J). The independence of the examiner is important. The examiner cannot act at the dictation of others: LHRC at [41].

14    The use and scope of the coercive examination powers has been the subject of a number of authorities. An instructive overview is provided in Strickland v Commonwealth Director of Public Prosecutions [2018] HCA 53; (2018) 266 CLR 325 at [2]-[17].

15    It is the disclosure and dissemination of information given during a coercive examination that creates potential risk to the fair trial of an accused. Self-evidently, there will be disclosure of information to those present at the examination. There will then be the potential for dissemination of such information. It is the CEO of the ACIC who has the power to control what information obtained from a witness during an examination can otherwise be disseminated and to whom (for example, to an agency such as WAPOL): s 59AA of the ACC Act. Therefore, whilst an examiner regulates who may be present at an examination, they do not authorise further dissemination of examination material.

16    In particular, s 25A of the ACC Act regulates the conduct of the examination and affords several protections to the witness. Relevant provisions are as follows:

25A    Conduct of examination

Conduct of proceedings

(1)    An examiner may regulate the conduct of proceedings at an examination as he or she thinks fit.

…

Persons present at examination

(3)    An examination before an examiner must be held in private and the examiner may give directions as to the persons who may be present during the examination or a part of the examination.

(4)    Nothing in a direction given by the examiner under subsection (3) prevents the presence, when evidence is being taken at an examination before the examiner, of:

(a)    a person representing the person giving evidence; or

(b)    a person representing, in accordance with subsection (2), a person who, by reason of a direction given by the examiner under subsection (3), is entitled to be present.

(5)    If an examination before an examiner is being held, a person (other than a member of the staff of the ACC approved by the examiner) must not be present at the examination unless the person is entitled to be present by reason of a direction given by the examiner under subsection (3) or by reason of subsection (4).

Witnesses

 (6)    At an examination before an examiner:

(a)    counsel assisting the examiner generally or in relation to the matter to which the ACC operation/investigation relates; or

(b)    any person authorised by the examiner to appear before the examiner at the examination; or

(c)    any legal practitioner representing a person at the examination in accordance with subsection (2);

may, so far as the examiner thinks appropriate, examine or cross-examine any witness on any matter that the examiner considers relevant to the ACC operation/investigation.

(6A)    For the purposes of subsection (6), the matters relevant to the ACC operation/investigation may include:

(a)    the subject matter of any charge, or imminent charge, against the witness; and

(b)    the subject matter of any confiscation proceeding, or imminent confiscation proceeding, against the witness.

…

(7)    If a person (other than a member of the staff of the ACC) is present at an examination before an examiner while another person (the witness) is giving evidence at the examination, the examiner must:

(a)    inform the witness that the person is present; and

(b)    give the witness an opportunity to comment on the presence of the person.

(8)    To avoid doubt, a person does not cease to be entitled to be present at an examination before an examiner or part of such an examination if:

(a)    the examiner fails to comply with subsection (7); or

(b)    a witness comments adversely on the presence of the person under paragraph (7)(b).

Confidentiality

(9)    An examiner may direct that examination material:

(a)    must not be used or disclosed; or

(b)    may only be used by, or disclosed to, specified persons in specified ways or on specified conditions.

(9A)    An examiner must give a direction under subsection (9) about examination material if the failure to do so:

(a)    might prejudice a person's safety; or

(b)    would reasonably be expected to prejudice the examinee's fair trial, if the examinee has been charged with a related offence or such a charge is imminent.

17    The entitlement for an examinee to be heard on the question of attendance, as provided by s 25A(7), is significant, particularly as an examinee cannot refrain from answering a question and the privilege against self-incrimination is abrogated. Section 25A(7) is addressed in more detail below. However it is apparent from the terms of s 25A(7) that whether a person is a member of the staff of the ACC is important to the issue of disclosure of attendance at an examination.

18    It should also be noted that following the High Court decisions of X7 v Australian Crime Commission [2013] HCA 29; (2013) 248 CLR 92 and Lee v The Queen [2014] HCA 20; (2014) 253 CLR 455, the ACC Act was amended in 2015 to provide that the examination power can be used even where, as in this case, the witness has been charged with offences: s 24A(2) and s 24A(3). Section 25A(9A) was introduced as one of the 2015 amendments. The statutory regime considered by the High Court in Strickland was as it stood prior to those amendments: Strickland at [1].

19    By these same 2015 amendments, a number of other sections were inserted, namely s 25B, s 25C, s 25D, s 25E, s 25F, s 25G and s 25H. They permit evidence given by an examinee or documents produced by an examinee (included in the term 'examination material') to be disclosed to a prosecutor only in given circumstances: s 4B(1) of the ACC Act. 'Prosecutor' is defined in s 4 broadly as follows:

prosecutor, of an examinee, means an individual:

(a)    who is a prosecuting authority or is employed or engaged by a prosecuting authority; and

(b)    who:

(i)    makes, or is involved in the making of, a decision whether to prosecute the examinee for a related offence; or

(ii)    is one of the individuals engaging in such a prosecution of the examinee.

20    Section 25E of the ACC Act preserves the Court's requirement to ensure a fair trial.

21    In any event, the right to a fair trial remains protected by a trial judge's discretion in relation to the admissibility of evidence and by a court's institutional powers to punish for contempt: X7 at [65] (French CJ and Crennan J), citing Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 at [10]-[12] (Gleeson CJ, Gummow, Hayne and Crennan JJ); and Dupas v The Queen [2010] HCA 20; (2010) 241 CLR 237 at [14]-[15].

22    I might add at this point that the terms 'witness' and 'examinee' are both used in the ACC Act within s 25A to describe the person being examined. Generally in these reasons I use the word 'witness' to denote the person being examined, although sometimes it is simpler in the context to use 'examinee': nothing turns on this usage.

'Member of the staff'

23    Section 4 of the ACC Act sets out defined terms. It relevantly provides that:

Member of the staff of the ACC means:

(a)    a member of the staff referred to in subsection 47(1); or

(b)    a person participating in an ACC operation/investigation; or

(c)    a member of a task force established by the Board under paragraph 7C(1)(f); or

(d)    a person engaged under subsection 48(1); or

(e)    a person referred to in section 49 whose services are made available to the ACC; or

(f)    a legal practitioner appointed under section 50 to assist the ACC as counsel.

24    As I identified in the introduction, the question of whether Officer Masterson was a 'member of the staff of the ACC' is central to these proceedings. Limb (b) of the above definition is relevant. Whether or not Officer Masterson could properly be described as 'a person participating in an ACC operation/investigation' is to be determined having regard to two instruments.

25    The first instrument is a determination dated 21 June 2017 by the Board of the ACC issued pursuant to s 7C entitled 'Australian Criminal Intelligence Commission Special Operation Authorisation and Determination (High Risk and Emerging Drugs No 3)' (HRED3 determination). The second instrument is an 'in confidence' document issued by the Commissioner on 27 July 2017 and referred to by the respondents as a 'participants instrument' (Participants Instrument).

The HRED3 determination

26    By s 7C(1)(c) of the ACC Act, one of the functions of the Board is to authorise the ACC to undertake intelligence operations relating to federally relevant criminal activity. By s 7C(2), the Board may also determine that an investigation into matters relating to federally relevant criminal activity is a 'special operation'. Before doing so, it must consider whether ordinary police methods of investigation into the matters have been effective at understanding, disrupting or preventing the federally relevant criminal activity.

27    The Board of the ACC has issued a number of determinations about high risk and emerging drugs, including the HRED3 determination, and has determined that they are special operations.

28    On 21 June 2017 the Board made the HRED3 determination under s 7C of the ACC Act, authorising the ACIC to 'undertake the intelligence operation relating to specified criminal activity'.

29    Paragraph 7 of the HRED3 determination provides that the general nature of the circumstances or allegations constituting specified criminal activity are those set out in Schedule 1. The general nature of the circumstances are described in para 2 of Schedule 1 and include:

(a)    illicit drug use in Australia has a significant social cost to the community with consequential impact on family and social cohesion and is a driver of volume crime;

(b)    amongst HREDs, methylamphetamine and cocaine are currently assessed as presenting, respectively, a critical and high level of risk to the Australian community, with longer term assessments indicating likely further increases in risk for some HREDs including MDMA, heroin, illicit pharmaceuticals and performance and image enhancing drugs and substances, and a tangible and concerning organised crime footprint in the cannabis market;

(c)    transnational illicit drug markets are becoming more diverse and profitable and a far more varied range of organised crime groups are impacting the Australian border as sources of supply to the methylamphetamine, heroin, cocaine and MOMA markets;

(d)    in particular, networks involved in the production and trafficking in cocaine and MDMA are among the most sophisticated, profitable and powerful criminal networks at an international level and some of these networks are present in or importing drugs to Australia;

(e)    in relation to synthetic HREDs, ongoing challenges to law enforcement agencies include changes in production methods and precursors;

(f)    users throughout Australia are consuming a wide range of analogues (for illicit drugs), psychoactive substances, and performance and image enhancing drugs and substances, which are already, or may in due course become, illicit substances, and these substances present unique challenges to law enforcement agencies, health authorities and legislators;

(g)    performance and image enhancing drugs and substances are regularly being imported into and trafficked within Australia by traditional organised crime groups, entrepreneurial criminals and regular users and are often being consumed in tandem with illicit drugs such as methylamphetamine. Sales of these substances by organised crime groups to military personnel and law enforcement officers are generating corruption risks, while sales to professional sportspersons and gym/fitness centre customers (at times with the assistance of medical and health professionals) are proving increasingly profitable and posing infiltration risks for the relevant industries. This market is also characterised by increasing injection by users, which poses its own risks of harm;

(h)    a number of intelligence gaps exist in current law enforcement understanding of the nature and extent of HRED markets; or

(i)    the specified criminal activity connected with HREDs is resilient to traditional law enforcement investigations and intelligence collection and ACIC experience with the collection of information and intelligence in connection with such activity is that, to be effective, ACIC and partner bodies ·need to adopt a collaborative approach encompassing each of the following elements:-

(i)    the development of more comprehensive intelligence in relation to specified criminal activity;

(ii)    preventing, disrupting, disabling and dismantling identified criminal enterprises engaged in specified criminal activity through enforcement, regulation, policy and other action (which may be undertaken by ACIC partner bodies);

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

(iv)    the use of ACIC coercive powers to facilitate the collection of information and intelligence not available through other information collection methods.

30    As to the general nature of the allegations constituting federally relevant criminal activity, para 3 of Schedule 1 includes:

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

(b)    offences contrary to section 320.2 (importing psychoactive substances) of the Criminal Code;

(c)    offences contrary to Part 3-1 or Part 3-2 of the Therapeutic Goods Act 1989 (Cth) which are punishable by imprisonment for a period of three years or more.

31    Paragraph 3 of Schedule 1 then lists many other connected offences, including offences involving violence, money laundering and general dishonesty.

32    Paragraph 6 of the HRED3 determination provides that pursuant to para 7C(1)(d) and para 7C(2) of the ACC 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 at understanding, disrupting or preventing specified criminal activity;

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

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

33    Paragraph 9 identifies the purposes of the intelligence operation as follows:

The purposes of the intelligence operation are to:

(a)    collect and analyse criminal information and intelligence relating to the specified criminal activity, to disseminate that information and intelligence in accordance with the Act and to inform the Board in relation to that information and intelligence;

(b)    identify the entities involved in the specified criminal activity, and the nature of the activity, and as appropriate, refer that information to other bodies;

(c)    make appropriate recommendations to the Board and other bodies about suggested investigative and other responses;

(d)    reduce the incidence and effect of the specified criminal activity (including any adverse impacts on Australia's national interests) including through:-

(i)    disruption and/or prevention;

(ii)    making markets, sectors, infrastructure and capabilities more resilient to the specified criminal activity;

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

(i)    the law relating to relevant offences;

(ii)    relevant policies and administrative practices; and

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

(f)    consistent with the definition of intelligence operation in the Act and the purposes above, to investigate the specified criminal activity and to collect evidence about that activity and facilitate the apprehension and, if appropriate, the prosecution of entities involved in it.

(footnote omitted)

34    It is not in issue that Project Baystone was a project being conducted by the ACIC under the intelligence operation authorised by the HRED3 determination. The aim of Project Baystone was stated by the ACIC to be 'to monitor the illicit drug markets for methylamphetamine, cocaine, MDMA and heroin and resolve intelligence gaps in relation to those markets'.

35    By s 7C(1)(e) of the ACC Act, the Board is also authorised to 'determine, in writing, the class or classes of persons to participate in such an operation or investigation' (the difference between the phrase 'the class or classes of persons to participate' used in this paragraph, and the phrase 'a person participating in an ACC operation/investigation' used in the 'member of the staff of the ACC' definition is of some importance to issues that are discussed below).

36    Relevantly, the Board's determination of the class or classes of persons who participate in the intelligence operation is set out in para 10 of the HRED3 determination.

37    Paragraph 10 provides that pursuant to s 7C(1)(e) of the ACC Act, 'the classes of persons to participate in the intelligence operation are those set out in Schedule 2'. Schedule 2 of the HRED3 determination is headed 'Classes of persons' and sets out the following list:

1    The CEO.

2    Each person who is:

  (a)    a member of the staff of the ACC; and

(b)    identified in writing by the CEO, or a delegate of the CEO, as a person whose duties include providing services in relation to ACIC operations and investigations.

3    Each person who is:

(a)    an officer or member of the staff of any of the following agencies:

(i)    an agency of which a Board member is head (other than the CEO) in his or her capacity as a Board member;

   (ii)    AUSTRAC;

   (iii)    the Department of Immigration and Border Protection;

   (iv)    Australian Border Force;

   (v)    the Department of Health;

   (vi)    the New South Wales Crime Commission;

   (vii)    the Queensland Crime and Corruption Commission;

   (viii)    the Corruption and Crime Commission, Western Australia;

   (ix)    the Australian Sports Anti-Doping Authority;

   (x)    the Therapeutic Goods Administration;

(xi)    the Australian Commission for Law Enforcement Integrity; and

(b)    identified in writing by the head of that agency, or a delegate of that head, as a person whose duties include providing services in relation to ACIC operations and investigations.

38    Under para 3(b) of Schedule 2 of the HRED3 determination, the Commissioner or a delegate of the Commissioner was therefore authorised to identify in writing an officer or member of the staff of WAPOL as 'a person whose duties include providing services in relation to ACIC operations and investigations'. So, it follows, if the Commissioner made a written identification, such persons would fall within 'the classes of person to participate in the intelligence operation'.

39    It is also important to note that s 58 of the ACC Act contemplates administrative arrangements with the States whereby members of a Police Force of a State may be made available to perform services for the ACC. Section 49 provides that such persons, together with persons from the Australian Federal Police or other Commonwealth authorities whose services are seconded to the ACC, may assist the ACC in the performance of its functions, and they thereby become members of the staff of the ACC as defined. So much is consistent with s 17(1) of the ACC Act which provides that 'in performing its functions under this Act, the ACC shall, so far as practicable, work in co-operation with law enforcement agencies'.

The Participants Instrument

40    On 27 July 2017 the (then) Commissioner issued the Participants Instrument which, it is contended by the respondents, comprises the written identification required by para 3(b) of Schedule 2 of the HRED3 determination.

41    The Participants Instrument provides:

I, Karl O'Callaghan, a member of the Board of the Australian Criminal Intelligence Commission (ACIC) and Commissioner of Western Australia Police, hereby identify, for the purposes of Item 3 of Schedule 2 of each of the instruments set out in Schedule A hereto (the instruments), the officers and members of staff of the Western Australia Police from time to time holding, occupying or performing the duties of the offices or positions set out In Schedule B hereto as persons whose duties include providing services in relation to the ACIC operations and investigations set out in the instruments.

42    Schedule A of the Participants Instrument refers to nine instruments, including the HRED3 determination. Other instruments relate to operations concerning matters that include firearms trafficking, cyber-related offending and outlaw motor cycle gangs.

43    Schedule B of the Participants Instrument states as follows:

Schedule B - Western Australia Police Officers and Positions

•    Commissioner

•    Each Deputy Commissioner

•    Each Assistant Commissioner

Members or employees of Western Australia Police appointed, assigned, or seconded to:

•    Intelligence Portfolio

•    State Crime

•    Counter Terrorism and Emergency Response Division

•    Metropolitan Region

•    Regional Western Australia

44    At all relevant times, Officer Masterson was employed in the Organised Crime Squad, which is part of the State Crime Portfolio, Serious and Organised Crime. By a pathway that culminates in the reference to members of WAPOL appointed to State Crime in Schedule B of the Participants Instrument, the respondents contend that Officer Masterson was, at the time of the examination of the applicant, a person who fell within the class of persons to participate in the intelligence operation authorised by the HRED3 determination (referred to variously by the parties as the HRED3 operation or simply the operation), including Project Baystone.

The events

Affidavits relied upon

45    The following evidence and chronology is based on documentary evidence annexed to an affidavit of the applicant's solicitor, and affidavits provided on behalf of the respondents by Detective Sergeant Matthew Taylor, Officer Masterson, Assistant Commissioner Bradley Royce, [AA] (a [redacted] legal officer at the ACIC) and Mr Lusty. Mr Lusty was the only person who was cross-examined. His evidence is dealt with in detail separately below.

The lead up to the issue of summonses

46    In 2017 WAPOL was conducting an investigation into suspected criminal activities of alleged drug syndicates. The investigation included operations known internally by WAPOL as Operation [E] and Operation [V]. The applicant's arrest and charge resulted from Operation [V].

47    In about December 2017 Officer Taylor of WAPOL, who was attached to the Organised Crime Squad, identified certain potential witnesses for examination by the ACIC, including the applicant. An internal WAPOL email from Officer Taylor that noted persons 'that we would like to examine' was forwarded to [AA] at the ACIC.

48    According to [AA], [AA] met with WAPOL before Christmas 2017 to discuss running examinations regarding a particular drug syndicate. In an internal ACIC email [AA] noted that WAPOL had suggested the names of a number of witnesses 'who they would like to examine'. [AA] said:

I think the proposed examination program presents an opportunity to gather intel about [original redaction] which will potentially yield significant intel benefits to the ACIC (and partner agencies).

49    The internal email referred to 'intel' such as:

Who they were working for, their roles, who paid for the rental properties and the cars, where they got the money to make those transactions and related matters.

[original redaction] is suspected to be money laundering through [original redaction] on behalf of the [original redaction] syndicate …

50    During January 2018 Officer Taylor, together with another WAPOL officer, Senior Detective Sergeant Michael Rowson, attended the ACIC Perth office and met with [AA] to discuss potential witnesses for examination, including the applicant. According to Officer Taylor, the officers discussed the examination process and potential witnesses. Officer Taylor said it was not decided at that meeting who would attend the examination from WAPOL.

51    Officer Taylor's evidence is vague as to dates. He said that following that meeting, he and Officer Rowson decided that Officer Masterson should be nominated as the person to attend the examination. Officer Taylor said Officer Masterson was suggested because he was new to the team, had no knowledge of Operation [V] and had a light workload. Officer Taylor said he then contacted [AA] and informed [AA] that Officer Masterson would be available to attend the examination of the applicant; that Officer Masterton had just joined his team; that Officer Masterson had not been involved in the investigation of the applicant; and Officer Masterson had not been involved in the decision to charge the applicant.

52    It is unclear how communication with Mr Lusty commenced, but it is apparent from email exchanges that by 30 January 2018 [AA] had been told that Mr Lusty had been 'pencilled in' for a series of examinations in Perth, including that of the applicant. On that date [AA] emailed Mr Lusty stating as follows:

In essence, the WA Police have charged [redacted] witnesses with related drugs charges and charges relating to the unlawful possession of cash. Those examinations will be post-charge. Matthew Taylor, the case officer understands that the police involved in the investigation and the subsequent prosecution may be excluded from any post-charge examinations and may not have access to any information obtained during these examinations until after all related proceedings are completed.

The issue being that members of the investigating team who were involved in the decision to charge the respective examinees potentially fall within the definition of 'prosecutor of an examinee' because they made or where involved in the making of a decision whether to prosecute the examinee for a related offence. Although I note that when the ACC Act amendments were being drafted the intent was for the definition to only apply to agencies such as the DPP and to exclude investigators. However, the definition is broad enough to capture the investigators who were involved in the decision to charge, even though that was not what parliament intended …

However the police may need to act on the information - for example if one of the post-charge witnesses identified another drug 'safe-house' or some other type of relevant information that requires immediate follow-up, the police would like to use the information to obtain a search warrant if required (without revealing how the information was obtained).

Matthew has told me that he would like the examination material to be provided to a second investigation team who were not involved in the initial investigation and subsequent prosecution so they can assess and act on the information if required. Detective Senior Constable Drew Matheson [sic - Masterson] is a new member of the investigating team who was not involved in the decision to charge any of the examinees. The proposal will be to disseminate the post-charge examination material to DSC [Masterson] (or another investigator independent from the prosecutions) who will in turn provide the information to a second investigation team who can use the information for derivative use to make further inquiries as needed.

We will need to impress on [Masterson] and the second investigating team that they must not discuss the post-charge evidence with Matthew or other police who are associated with the current prosecutions.

53    It is apparent that at that stage the suggestion put to Mr Lusty was that the examination material would be disseminated to Officer Masterson after the examination - there is no reference to his attendance at an examination.

54    Mr Lusty replied by email of the same date, writing:

I confirm that I am available for these proposed examinations, but I have not yet made any decisions about whether to conduct them. When you are preparing the relevant paperwork please be careful to ensure that it is proposed that they will be conducted (by an Examiner) for the purpose of a special ACC operation (including Project Baystone) pursuant to the HRED3 Determination, having regard to the decision in DPP (Cth) v Galloway & Ors [2017] VSCA 120 (25 May 2017). Some of the language in the emails below arguably suggests that the examinations would be conducted by, or on behalf of, WA Police (and also arguably implies that it is a forgone conclusion that they will be conducted and that the examination material will be disseminated to WA Police). I know that this is not intended, but it is important to avoid and discourage loose language in emails which could potentially be seized upon by defence lawyers and used against us in the event of a legal challenge (as occurred in Galloway). You might want to (diplomatically) draw this to the attention of relevant WA Police officers (who are unlikely to appreciate the full significance of Galloway-type issues).

I agree with your analysis about the potential width of the definition of 'prosecutor'. For a POST-CHARGE examination I tend to think that it would ordinarily be necessary (re the 1st dot point below), or highly desirable (re the 2nd dot point below), to not permit any of the following persons to be present at the examination and also make a Confidentiality Direction preventing disclosure (until resolution of the related post-charge offence/s) to:

•    any prosecutor of the examinee for a 'related offence', including any member of a police force who was 'involved in the making of a decision whether to prosecute the examinee' for such an offence; and

•    any person proposed to be involved in such a prosecution, including any proposed prosecution witnesses (I think this is generally highly desirable to avoid legal challenges, especially in light of the decision in R v Seller & McCarthy [2013] NSWCCA 42, in which it was held that the evidence of a proposed prosecution witness - Quincy Tang - should be excluded because he had attended an examination and/or received transcripts of it).

Assuming that I do approve the proposed examinations, the proposal outlined below seems fine. It might also be possible and desirable for someone who was involved in the initial investigation, but was not actually 'involved in the making of the decision to prosecute' and is not a proposed witness (e.g. a WA Police intelligence analyst), to be present at the examination to assist us (given the additional relevant knowledge such a person is likely to have).

If and when the proposed examinations are approved, but before they are conducted, I could prepare some draft proposed Confidentiality Directions for you and others to consider in order to ensure that they are workable, but I wouldn't decide on the final wording until I have considered any submissions the witness and his/her lawyer might wish to make about it (and no final decision about to whom examination material will be formally disseminated should be made until the conclusion of the examination).

(original emphasis)

55    Therefore, it is apparent that Mr Lusty suggested on 30 January 2018 that it might 'also be possible and desirable' that a WAPOL member be present at the examination.

56    Later that day [AA] emailed Officer Taylor confirming much of the exchange that is reflected in the email at [54] above, and also referring to the fact that [AA] had spoken to Mr Lusty. Relevantly, [AA] said in the email to Officer Taylor:

I have spoken to the Examiner about the proposed examinations and I do not anticipate any issues with the Examiner making a direction/s that permits (subject to conditions) the post-charge examination material being provided to Drew [Masterson] and a second investigations team for derivative use providing those persons were not involved in any decision to prosecute the proposed witnesses.

As I mentioned during our meetings, the police who were involved [in] any subsequent decision to prosecute any of the examinees will be excluded from the examinations.

If possible, it may be prudent to have someone who was involved in the initial investigation, but who was not actually 'involved in the making of the decision to prosecute' and who is not a likely prosecution witness (e.g. a WA Police intelligence analyst), to be present at the examinations to assist us. Any police who are present during the proposed examinations will not be permitted to discuss any of the post-charge examination material with any of the police who were involved in any decision to prosecute any of the examinees until after the charges are finalised.

57    It is apparent from the documentary evidence that Mr Lusty was told by [AA] on 30 January 2018 that Officer Masterson was a new member of the investigating team who was not involved in the decision to charge the applicant or any of the other proposed witnesses.

The application for summonses to issue

58    [AA] was involved in the drafting of the summonses. In what appears to be an internal email from [AA] to other ACIC employees on 23 January 2018, [AA] noted that [AA] could help generate the summonses but said:

I have [number redacted] witnesses listed but I am not convinced that all [number redacted] need to be or should be examined. While we are always happy to assist our partner agencies, the ACIC should also assess which witnesses should be examined bearing in mind that we are conducting the examinations for the purposes of the HRED3 [operation].

59    [AA] completed an ACIC 'examination proposal form'. The proposal to examine witnesses, including the applicant, was subsequently approved by the ACIC.

60    The formal application to Mr Lusty for a summons to issue was dated 9 February 2018 and signed by Mr Shane Neilson, who was described as the 'Head of the Determination', with legal submissions provided by [AA].

61    The application set out details of WAPOL's operations that led to the arrest of the applicant and the basis for suspicions as to his involvement in matters relating to an identified drug syndicate and the sale and supply of methylamphetamine. It also set out the nature of the evidence to be sought by way of the examination. It explained why the examination was said to be reasonably necessary for the purposes of the ACIC operation even though the examinee had been charged (and confiscation proceedings had been commenced). The application relevantly said:

87.    For the reasons explained below, the post-charge and post-confiscation application examination of [the applicant] is reasonably necessary in all the circumstances and for the purposes for the ACC Special Operation (ACC Act s 28(1)(c) and (d))). Section 25A(6A)(a) and (b) of the ACC Act provides that an examinee may be examined about the subject matter of any charge or imminent charge or confiscation or imminent confiscation proceedings against the witness. [The applicant] will be examined about the subject matter of his current charges. Relevantly, subsection 30(5) of the ACC Act prevents the answers to any questions or documents provided by the examinee from being admissible in any criminal proceedings or a confiscation proceeding. The focus of the examination revolves around his involvement and knowledge of drug trafficking and money laundering networks in Perth and nationally as outlined above.

88.    The information provided by [the applicant] is expected to fill intelligence gaps under the [redacted] and the [redacted] as outlined above which fall within the scope of the Determination and also satisfy the objectives of Project Baystone.

89.    This knowledge will allow the ACIC to work with partner agencies to disrupt the involvement of serious and organised crime in drug trafficking related activities, including the individuals who fall within the definition of highest risk criminal targets currently being investigated under the HRED3 Determination and Project Baystone.

[The applicant's] Right to a Fair Trial

90.    The following measures will be used to protect [the applicant's] right to a fair trial and to ensure that his confiscation proceedings are not prejudiced.

91.    The officers involved in [the applicant's] criminal investigation will be advised (as ACIC members of staff) that he will be examined (ACC Act s 25F). However, the police who were involved in making the decision to charge [the applicant] will not be permitted to attend his examination. The Examiner may make a direction under subsection 25A(9) of the ACC Act which prohibits his examination material of the kind described in section 4B(1)(a) and (b) of the ACC Act from being disclosed to members of the WA Police who are involved in making the decision to charge [the applicant] until the charges are 'resolved'.

92.    The Examiner may also be invited to make a restrictive Non-Publication Direction under section 25A(9) of the ACC Act, to prevent subsequent disclosure of examination material to the WA Police and the appropriate prosecuting authorities who are involved in making the decision to charge [the applicant] until the matters are resolved. Subject to any direction made by the Examiner under section 25A(9), the ACIC may release [the applicant's] examination material (under section 59AA(1)) in de-identified form to partner agencies (including the WA Police) to further preserve his right to a fair trial.

Confiscation Proceedings

93.    However, the same restrictions may not necessarily apply to confiscation proceedings (being civil proceedings) that have been or may be commenced against [the applicant]. Section 25H of the ACC Act permits the ACIC to disclose pre-confiscation and post-confiscation examination material to a proceeds of crime authority …The directions that may be made under section 25A(9) will be further discussed with the examiner after [the applicant] has given his evidence and appropriate orders sought to ensure that [the applicant's] right to a fair trial (and to the extent necessary, his confiscation proceedings) is not prejudiced.

94    The ACIC will comply with sections 25B to 25G of the ACC Act regarding the disclosure of post-charge examination material to the 'prosecutor of an examinee' to the extent that those provisions apply to [the applicant's] examination.

…

Whether it is reasonable in all the circumstances to issue the Summons?

107.    On the basis of information in the Statement of Facts and Circumstances, [the applicant] is suspected to be involved in drug trafficking. Consequently, [the applicant] is reasonably expected to have information concerning the criminal [activities] of drug distribution networks and money laundering activities within Western Australia nationally and the identity of the persons involved, including the methodologies used to import and distribute the drugs. As noted above, this will provide strategic and operational intelligence within the scope of the HRED3 Determination and Project Baystone.

(original emphasis)

The summons

62    Section 28 of the ACC Act sets out the circumstances in which an examiner may issue a summons. Relevantly, it provides that:

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.

63    On 14 February 2018 Mr Lusty approved the issue of a summons with respect to the applicant and provided reasons, as required under s 28(1A).

64    Mr Lusty's reasons for the issue of the summons describe that the examination was for the purposes of the HRED3 determination, and that it was reasonably necessary for the purposes of the HRED3 determination, even though the applicant had been charged with related offences and related confiscation proceedings because (adopting Mr Lusty's use of 'examinee' in the reasons):

(a)    there were reasonable grounds for suspecting that the examinee had knowledge relating to 'specified criminal activity' involving 'high risk and emerging drugs' (especially in light of the existing charges against him);

(b)    such knowledge would be relevant to the matters in para 1 of Schedule 1 of the HRED3 determination and would assist in achieving the purposes set out in para 9 of the HRED3 determination (including to advance Project Baystone);

(c)    he considered that the examinee would be likely to disclose such knowledge and information;

(d)    the ACC Act provides various safeguards to protect, or at least minimise infringement of rights and interests of the examinee; and

(e)    the proposed examination is in the public interest in order to enable the ACIC to perform its important public functions, notwithstanding inevitable infringement of the examinee's privacy (and potentially other's).

65    Mr Lusty's reasons state that the applicant has been charged with 'related offences' and currently had 'related confiscation proceedings' commenced against him. The reasons record that these are significant factors requiring special consideration and additional caution, having regard to the position of an accused 'under our accusatorial system of criminal justice', however, Mr Lusty said he was satisfied that the examination was reasonably necessary having regard to the following:

(a)    Parliament has authorised post-charge examinations and recognised that the Examiner's power is 'necessary to achieve the legitimate aim of protecting the community from serious and organised crime';

(b)    Parliament has authorised post-confiscation application examinations and recognised that granting Examiners this power is 'necessary to achieve the legitimate aim of depriving serious and organised criminal groups from accessing the proceeds of their crimes';

(c)    the purpose of the examination is not to bolster the existing criminal prosecution of the examinee but to determine the matters referred to in para 1 of Schedule 1 of the HRED3 determination and to gather relevant information and intelligence in pursuit of the purposes in para 9 of the HRED3 determination;

(d)    the examination will be held in private and the Examiner is 'likely to strictly limit the persons permitted to be present during the examination';

(e)    a direction is likely to be made pursuant to s 25A(9) prohibiting various disclosures and uses of the evidence given by the examinee;

(f)    the ACC Act contains and recognises other legal mechanism designed to reduce potential prejudice or unfairness to an examinee (e.g. s 25C-25E and s 30);

(g)    the judge in relation to the criminal prosecution against the examinee possesses a range of powers and discretions to address any residual potential prejudice;

(h)    that it is expected the examinee will provide evidence that is highly relevant and valuable; and

(i)    there is significant public interest in obtaining and utilising such evidence 'as soon as possible' rather than waiting for the relevant offences and confiscation proceedings to be fully 'resolved'.

66    Mr Lusty also prepared 'Reasons for inclusion of a notation in the Summons prohibiting disclosure' (under s 28(3) of the ACC Act) and 'Reasons for inclusion of a notation prohibiting disclosure' (under s 29A of the ACC Act). It is not necessary to refer to those documents further.

The confidentiality direction

67    Prior to the examination, Mr Lusty and [AA] exchanged further emails.

68    On 23 February 2018 (the Friday before the examination), Mr Lusty relevantly said in an email bearing the subject line 'Confidentiality Directions':

Further to our previous emails, I enclose a draft version of the type of CD for [the applicant] (and other post-charge examinees) I am contemplating making. It is essentiality the same as previously indicated. I note that it would prohibit disclosure to:

•    Any police officers involved in the making of the decision to charge [the applicant];

•    Any police officers who are proposed to be witnesses in the current criminal proceedings against [the applicant]; and

•    Anyone else who is involved, or proposed to be involved, in the prosecution against [the applicant] in some other way (e.g. assembling the brief of evidence or assisting the DPP etc).

Any such persons should not be in the attendance list for the examination (and I would prefer it if everyone on the list for all examinations was a 'member of the staff of the ACC'). However, there would no prohibition against any other police officers or police staff (e.g. analysts) being present at the examination and/or being informed of the evidence given by the examinee at the examination. In particular, there would be no prohibition against police involved in confiscation proceedings against the examinee being present at the examination and/or being informed of the evidence given by the examinee at the examination, but any such persons should be informed that the evidence would not be admissible in such confiscation proceedings (although it could be otherwise used to further relevant inquiries etc).

…

For post-charge examinations, I like counsel assisting to provide a copy of the draft CD to the examinee's legal rep just before the examination and I also like to make the direction towards the beginning of the examination before the substantive questioning begins.

I also enclose a draft version of the type of CD for [redacted] (and other pre-charge examinees) I am currently contemplating making. It essentially only prohibits the examinee, and his/her lawyer from disclosing 'examination material' to anyone else. For pre-charge examinations I usually have no objection to any relevant police officers attending (although they should all be 'members of staff if [sic] the ACC) and there would be no prohibition against subsequent disclosure of the 'examination material' to them.

(original emphasis)

69    A draft version of a confidentiality direction was attached to the email.

70    On 26 February 2018 (a Monday - and the day of the examination), Mr Lusty followed up on the email. He re-sent the email of 23 February 2018 and asked [AA]:

Hi [AA],

Is this all ok?

Regards

71    [AA] replied shortly after, stating:

Hi David,

Yes, I thought the draft ECDs were fine

Thanks

72    The acronym 'ECD' used by [AA] in the reply email is a reference to 'examination confidentiality direction'.

73    Mr Lusty then replied:

Thanks, [AA].

We can have a chat now if you are free.

Endorsement by the ACIC of Officer Masterson to attend examination

74    On 22 February 2018 [AA] sent an email to Mr Neilson. [AA] said it was ACIC policy to have the Head of the Determination endorse the people who can attend the examination. The email listed 12 persons, and said that those staff listed in italics would be viewing the examination from the streaming room (inferentially, separate to the examination room). Officer Masterson's name was included, but not in italics - so it seems that at one point the ACIC assumed Officer Masterson if authorised to attend would be visible in the examination room, but that position apparently changed.

75    [AA]'s evidence does not disclose how or when it was proposed to Mr Lusty that Officer Masterson would attend the examination.

The examination

76    The examination proceeded on 26 February 2018. The applicant was represented by his lawyer during the examination. [AA] was counsel assisting Mr Lusty.

77    Officer Masterson was authorised by Mr Lusty to be present at the examination under s 25A(3) of the ACC Act.

78    This authority is recorded in a document headed 'Authorisation for persons to be present at ACIC Examination (s25A (3) [ACC Act])' (Authority). Mr Lusty signed this document on 26 February 2018. The document is redacted to remove references to other persons who were approved to attend the examination. Relevantly, the document was divided into two pages. The first page included the endorsement:

The following named persons request Examiner authorisation, pursuant to section 25A(3) Australian Crime Commission Act, to be present during the ACIC Examination …

79    The second page bore the endorsement (original underlining):

The following persons who are not members of staff of the ACIC request Examiner authorisation, pursuant to section 25A(3) Australian Crime Commission Act, to be present during the ACIC Examination …

80    Officer Masterson was listed on the first page. He is described as holding the position of 'Det S/Const'. The reason for his attendance is said to be 'WAPOL (Partner Agency)'. It records that his attendance is by 'streaming'.

81    The applicant's counsel was listed in the second part, but the whole of the second page was crossed out and unsigned.

82    Officer Masterson signed a log indicating when he entered and left the streaming room. In the log he described his agency as 'WAPOL'.

83    Officer Masterson also signed a document called an 'Examination Briefing Statement'. The Examination Briefing Statement provided for the person completing the document to 'delete whichever is not applicable', the alternate items for deletion being whether the person is a member of the staff of the ACIC or whether they are not. Officer Masterson did not delete either item. Nor did Officer Masterson cross out or circle an option.

84    However, according to Mr Lusty, neither the log nor the Examination Briefing Statement were provided to him prior to or at the examination, and whilst those documents might indicate Officer Masterson was unsure of the basis upon which he was attending or whether he needed to complete the forms, they do not evidence any particular knowledge on the part of Mr Lusty.

85    By signing the Examination Briefing Statement, Officer Masterson acknowledged that he knew that the examination was private, that he was bound by a confidentiality direction under s 25A(9) and that a breach of the direction comprised a criminal offence.

86    Officer Masterson said that during the examination his presence was not drawn to the attention of the applicant. He was not in the same room as the applicant.

87    The transcript of the examination was in evidence before me. It indicates that Mr Lusty said the following at the commencement of the examination (and the extract does not disclose any confidential information):

Now, there are a few things I would like to emphasise at the outset. First (1st), these are not court proceedings and in this particular forum you are not on trial for any alleged offence. This is a purely administrative fact-finding inquiry into much broader issues than your own personal conduct. You've been called here as a witness because it's believed that you can provide relevant information in relation to the ACC's Special Operation, especially about the activities of other persons. So this Examination is completely separate and distinct from the current criminal prosecution against you or any confiscation proceedings relating to you, which will be heard in a court of law in the future.

Second (2nd), this Examination will be conducted in private. I direct that only the persons whose names appear on a sheet signed by me and dated today are permitted to be present during the Examination. All of these persons are members of staff of the ACC and it is my understanding that none of these persons currently is or intends in the future to be involved in the current criminal prosecution against you.

Third (3rd), the evidence you give at this Examination will be treated as confidential, and to preserve the confidentiality of these proceedings, I will make a direction restricting the use and publication of the evidence you give at this Examination, and the proposed terms of my direction will prevent the evidence that you give here from being disclosed to anyone involved or proposed to be involved in the current criminal prosecution against you, or from being otherwise used in relation to that criminal prosecution. In addition, the ACC Act contains many other provisions designed to ensure that this Examination does not prejudice your right to a fair trial in relation to the criminal charges against you, and I'll address some of these later on. The main thing I want to assure you about is that the purpose of this Examination is not to bolster the existing criminal prosecution against you or any confiscation proceedings relating to you, but rather for the ACC to gain criminal intelligence in relation to broader issues, especially about other persons and activities. …

88    Mr Lusty also made a confidentiality direction under s 25A(9) of the ACC Act during the examination, as had been anticipated. It provides:

I make this direction pursuant to subsection 25A(9) of the ACC Act …

I DIRECT that the evidence given at this examination and all 'examination material' (as defined in section 4B of the ACC Act) relating to this examination:

1)    MUST NOT be publicly disclosed; and

2)    MUST NOT be disclosed by the Examinee or any legal representative of his in relation to this examination EXCEPT that they may disclose such matters to each other solely for the purpose of the provision of legal advice or representation to the Examinee in respect of any matter relating to this examination.

I FURTHER DIRECT that the evidence given at this examination and any document or thing produced by the Examinee at the examination:

1)    MUST NOT be disclosed to any person involved or proposed to be involved in any existing criminal prosecution of the Examinee for any 'related offence' in respect of this examination, including the offences with which he was charged in [redacted] relating to the alleged possession of methylamphetamine and unlawfully obtained property, unless and until the charge is 'resolved' (according to the meaning of those terms in the ACC Act); and

2)    MUST NOT be otherwise used for the purpose of any such criminal prosecution.

This direction may be VARIED OR REVOKED in writing by the Chief Executive Officer or his delegate in accordance with subsections 25A(10) and (11) of the ACC Act.

Any disclosure or use of examination material in contravention of this direction is an offence punishable under the provisions of the ACC Act.

…

(original emphasis)

89    Mr Lusty then proceeded to conduct the examination, with [AA] acting as counsel assisting.

90    I will return to Mr Lusty's evidence about the examination after consideration of the matters in issue and the principles.

Officer Masterson's evidence

91    Officer Masterson said that he understood the purpose of his attendance was:

To gain a broader perspective on an issue related to law enforcement. The purpose was not to gain information or generate law enforcement intelligence reports, rather to gain an understanding of the issue of drug trafficking in Western Australia and to look at the workings of a drug syndicate, and assist the examiner if required.

92    Officer Masterson said that he understood the information in the hearing was not to be disseminated. He understood the rationale behind his attendance was that he had no involvement with any persons subject to investigations in relation to Operation [V].

93    Officer Masterson said he had some involvement in Operation [V] but only with respect to assisting in the arrest and conveyance of two other persons and at addresses unrelated to the applicant. He had no involvement in investigations related to those persons.

94    Officer Masterson said he had no involvement in the investigation of the applicant or the decision to charge him, or any involvement in the prosecution of charges against him.

95    He said that he has not disclosed any information from the examination of the applicant to anyone involved in the investigation or prosecution of the applicant.

96    I also note that according to [AA], there has been no disclosure by the ACIC of information given at the examination to WAPOL (not that such post-event evidence is determinative of the issues in this proceeding).

The challenges to the ACIC examination

97    The applicant seeks review of Mr Lusty's decision to permit Officer Masterson to be present at the examination without informing the applicant of his presence or status and relies on six grounds of claim, most of which have multiple particulars.

98    By ground 1 the applicant asserts that Mr Lusty failed to take into account considerations relevant to the prejudicial effect of Officer Masterton's presence on the applicant's privilege against self-incrimination and his right to a fair trial.

99    By ground 2 the applicant contends that statutory procedures, such as informing the applicant that Officer Masterson was present, were not followed by Mr Lusty. It is premised upon a finding that Officer Masterson was not a member of the staff.

100    By ground 3 the applicant contends that Mr Lusty denied the applicant rights of procedural fairness and natural justice in failing to inform the applicant of the presence of Officer Masterson.

101    By ground 4 the applicant contends that the exercise of power by Mr Lusty to allow Officer Masterson to attend without disclosure to the applicant was an improper exercise of power and not one that was exercised consistently with the scope and purpose of the ACC Act.

102    By ground 5 the applicant asserts that Mr Lusty made an error of law in concluding that Officer Masterson was a member of the staff of the ACC within the meaning of s 4 and s 25A(7) of the ACC Act. I will deal with this ground first, and in some detail, because it informs all the other grounds of challenge.

103    Finally, by ground 6 the applicant contends that the examination, conducted as it was, was unlawful and, or alternatively, in reckless disregard of the examiner's statutory obligations under the ACC Act.

Claim of improper delegation and identification of 'Member of the staff of the ACC'

Delegation by the Board

104    The applicant challenges the scope of para 3(b) of Schedule 2 of the HRED3 determination, (being a person 'identified in writing by the head of that agency, or a delegate of that head, as a person whose duties include providing services in relation to ACIC operations and investigations').

105    The applicants assert that this item impermissibly sought to delegate to persons other than the Board the power under s 7C(1)(e) of the ACC Act to determine the class or classes of persons authorised to participate in the intelligence operation.

106    A submission to similar effect was dismissed by Mansfield J in D v Australian Crime Commission [2006] FCA 660; (2006) 152 FCR 497.

107    In D v ACC, the applicants challenged the validity of a summons issued under s 28 of the ACC Act. One contention raised was that the Board in authorising the investigation failed to comply with s 7C(1)(e). Schedule 2 of the determination instrument considered in D v ACC was in almost identical terms to Schedule 2 in the HRED3 determination. The contention was that only Item 1 (the CEO) was identified properly by the Board as a person who participates and Items 2 and 3 do not describe 'a class or classes' because 'the identity of the participants cannot then be determined, as their identification depends upon some subsequent act or acts by the CEO and by the heads of the nominated agencies' (at [30]). The alternative contention was that it impermissibly delegated to the CEO and to the heads of the nominated agencies the selection of the class or classes of persons to participate.

108    In D v ACC, Mansfield J referred to the broad context in which the definition of 'members of the staff of the ACC' is to be considered:

[51]    The inclusion in the definition of the term 'member of the staff of the ACC' of 'a person participating in an ACC operation/investigation' clearly may extend its staff members beyond those persons who perform services for the ACC under s 58. The definition contemplates a broad range of persons who may be members of the staff of the ACC. Those participating in an ACC operation or investigation (and thereby becoming members of its staff) may extend beyond the categories identified by s 47, s 48 or s 49 of the ACC Act. It is also apparent that the members of the staff of the ACC may, from time to time, include seconded persons under administrative arrangements under s 49. In their cases, their secondment would not specifically be authorised or supervised by the Board. The ACC Act contemplates those arrangements being made at an operational level rather than at the Board level of decision-making.

109    His Honour then considered the reason why the Board needs to specify the class or classes of persons to participate:

[53]    The reason why the Board needs to specify the class or classes of persons to participate in the examination is not entirely clear. One clear purpose is so that those who thereby become members of the staff of the ACC can be identified. Those identifiable persons then have the powers and obligations referred to under the ACC Act. Another clear purpose is so that the Board must control the persons who participate in its particular operations or investigations, so that it must address the particular class or classes or persons who appropriately are to participate in the particular operation or investigation. It is almost a corollary of the authorisation and determination functions of the Board that it should determine those who should participate in a particular operation or investigation. That is fortified by the requirements of s 7C(2), (3) and (4).

110    His Honour next addressed the reference to a 'class or class of persons':

[54]    The reference to a class or classes of persons is, no doubt, to avoid the requirement that the Board nominate each individual person to participate in a particular operation or investigation. That would impose very onerous and impracticable burdens upon the Board, having regard to the sort of investigations or operations which it might authorise. The inevitability of different persons moving in and out of its operations and activities is manifest. The determination under s 7C(1)(e) is not intended to require the Board to take account of such changes.

…

[57]    More importantly, in my view, is that the Board under the ACC does not have the direct responsibility for, or oversight of, the selection of the members of the staff of the ACC. That is done at a managerial or executive level …

111    His Honour concluded:

[58]    I do not consider that s 7C(1)(e) requires a determination in terms that, upon its making all the persons who may participate in a particular ACC operation or investigation are then immediately capable of identification. There is no reason why that should be so. Such a construction would not reflect the operational reality that generally the direct selection of the staff of the ACC (other than the CEO and of examiners) is not carried out by the Board of the ACC. Section 7C(1)(e) does not impose that task upon the Board. It is required to address the class or classes of persons who may participate in a particular ACC operation or investigation. It did so. By its determination, at any point in time those who were to participate in the relevant special investigation could be identified. Until any authorisation by a head of a specified agency, only the CEO would be able to do so. The step which the determination required under paras 2 and 3 of Sch 2 of designation by the heads of the nominated agencies serves to confine those within the class or classes specified by the Board. Such designation does not itself alter the class or classes as specified by the Board. As the respondents pointed out, the designation by the heads of the nominated agencies or their subordinates of the individuals from their agencies who would participate in the special investigation would be done in any event. The determination of the Board specified the class or classes of persons in a way which required that designation to be done by the head of the nominated agency and to be done formally, that is in writing. It need not have done so. The applicant does not contend that the Board could not, for example, have specified 'officers and members of the staff of the Queensland Crime and Misconduct Commission'. The refinement of that class by requiring the head of that agency to authorise in writing the particular members of that agency to participate cannot be seen as the Board not fulfilling a responsibility imposed by s 7C(1)(e) in any way which would otherwise serve the purposes of the ACC Act.

112    The reasons for rejecting the 'improper delegation' argument have been followed and applied in a number of cases: SS v Australian Crime Commission [2009] FCA 580; (2009) 224 FCR 439 at [53] (Jagot J); Z v Australian Crime Commission [2010] FCA 803; (2010) 188 FCR 85 at [116]-[118] (Reeves J); and GG v Australian Crime Commission [2009] FCA 759 at [102]-[104] (Besanko J) (reversed on appeal but without disturbing this aspect).

113    Senior counsel for the applicant acknowledged that I would follow those decisions unless I was of the view that it was plainly wrong (see Hicks v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 757 at [75]). It was submitted that the decision was wrong, and that it is in any event distinguishable.

114    I agree with Mansfield J's conclusion at [58] and the reasoning that preceded it. In coming to this view I have had particular regard to the following:

(a)    the ACC Act does not contemplate the Board being involved in operational or managerial details. It is not part of the ACC (s 7(2)); and

(b)    as is the case with the HRED3 determination, there is potential for an intelligence operation to be broad ranging and involve a number of law enforcement agencies over a long period of time. The applicant's contention that the Board could make new determinations in the event that staff positions change does not take into account the practical ramifications of seeking and obtaining the cooperation of the Board's members (noting its composition - s 7B) on each occasion of a relevant staff change. A construction that takes into account such operational realities is to be preferred, as endorsed by Mansfield J.

115    I have also considered the applicant's careful arguments as to why I should not follow D v ACC.

116    First, the applicant contends that the relevant instrument in D v ACC was different and required a different level of precision by the head of agency. To my mind the relevant provision under consideration in D v ACC was broader: it specified that the classes of persons to participate in the investigation are, relevantly, 'officers and members of staff, authorised in writing by the head of the [various agencies]'. Schedule 2 of the HRED3 determination has the effect of further confining the classes, and so requiring further precision, in that it also requires consideration of the duties of persons who may fall within the broader class. The class is confined by the requirement that in order to be a member of the class, the duties of an officer or member of staff must include providing services in relation to ACIC operations and investigations. I do not consider the different wording assists the applicant.

117    Second, the applicant contends that the power of the Board to determine the classes of persons to participate is not, on its proper construction, capable of delegation and that the Court would not impute to Parliament an implied intention that the Board would delegate its powers to determine the class of person to individual board members. This argument is met by Mansfield J's reasons, particularly at [58], and as already indicated, I do not consider his Honour is wrong. Rather, I agree with the reasoning in D v ACC. The Board by the HRED3 determination performed its task of determining in writing the class or classes of persons to participate in the intelligence operation. A step of designation undertaken by a head of agency or their delegate would serve to further confine those within the class but not alter the class itself.

118    Third, and in support of the argument that D v ACC is wrong, the applicant contends that a narrow meaning of 'member of the staff' is to be preferred because a broad meaning would undermine the value of the statutory right of an examinee to be told of the presence of non-staff members. This argument is dealt with separately below (at [137]-[142]).

119    Fourth, it is said that D v ACC is distinguishable in that it did not consider the question of whether the head of an agency may, in exercise of the power under para 3(b) of Schedule 2 of the HRED3 determination, identify persons by nominating a further class of persons. It was contended that the term 'identify' in para 3(b) of Schedule 2 to the HRED3 determination means 'to recognise or establish a particular person or thing, and that some degree of particularity or certainty is involved'. It was contended that the Commissioner was obliged to name names and that the Participants Instrument did not meet that obligation and so was invalid. This contention directs attention to a number of matters raised by the applicant's grounds of challenge, to which these reasons now turn.

Identification by a head of agency

120    It does not appear that the applicant's contention about nomination of a class by the head of agency, rather than individuals, has been addressed in any detail in the authorities. It is apparent from at least one case that the practice employed by the Commissioner, reflected in the Participants Instrument, may accord with the practice of other heads of agencies where the instruments with which they were concerned directed that they identify persons by reference to their class or membership within a particular division.

121    In R v Will [2017] ACTSC 356; (2017) 13 ACTLR 81, Mr Will was examined before the ACIC. He was then charged with aiding, abetting, counselling or procuring the offence of aggravated robbery. Having been examined, Mr Will contended that he could no longer receive a fair trial and sought orders for a permanent stay of proceedings against him.

122    The evidence established that some 20 people were present for the examination, a number of whom were listening to the examination from a monitoring room and so were not visible to Mr Will. All of the persons present were described as members of the staff of the ACC. Only two of the persons had an employment relationship with the ACIC. All others were AFP officers, 16 of them from ACT Policing.

123    Refshauge J said the following:

[121]    Documents provided to Mr Will's lawyers and annexed to Mr Perkins's second affidavit showed how these persons became, relevantly, staff of the Commission. As set out above (at [36]), s 4 of the Australian Crime Commission Act defines members of staff of the Commission to include 'a person participating in a ACC operation/investigation'. Paragraph 10 of the Second Determination makes, for the purposes of s 7C(1)(c) of that Act (for which, see [24] above), certain classes of persons are those who are to participate in the investigation under it. They are the classes set out in sch 2 and include persons identified in writing as a person whose duties include providing services in relation to ACC operations or investigations by the head of an agency, whose head is a Board member of the Commission and who is a member or officer of that agency.

[122]    On 2 June 2009, the Commissioner of the AFP and Chair of the Board of the Commission, identified in writing a very large number of members or officers of the AFP as such persons. A copy was one of the documents annexed to Mr Perkins' second affidavit.

[123]    On 26 June 2009, the Chief Police Officer of the AFP, a member of the Board of the Commission, identified in writing the Chief Police Officer, each Deputy Chief Police Officer and members or appointees of ACT Policing attached, assigned or seconded to the Territory Investigation Group and ACT Policing Intelligence as such persons. A copy was also annexed to the affidavit.

[124]    In his evidence, Detective Sergeant Laverty explained the structure of the Territory Investigation Group. Operation Galvanic was, the documents produced in answer to subpoena showed, an operation of the Territory Investigations Group. Senior Constable Williams and Detective Sergeant Laverty were members of that Group which later changed its name to Criminal Investigations. Thus, they were members of staff of the Commission.

124    It can be inferred from the affidavit evidence as to the role of Senior Constable Williams and Detective Sergeant Laverty that those persons were not specifically named in the identification in writing by the Chief Police Officer of the AFP referred to at [123] of Refshauge J's reasons. Rather, what was included, relevantly, was a reference to members of the Territory Investigation Group and ACT Policing Intelligence.

125    I accept that the validity of the head of agency's method of identification by reference to a team was not addressed in R v Will.

126    Similarly, in Commonwealth Director of Public Prosecutions v Brady [2016] VSC 334, whilst it is not entirely clear, it appears that identification may have been by reference to members of a group, rather than to named individuals: see [566]-[575].

127    The applicant refers to Mansfield J's statement in D v ACC and being part of [58] in those reasons that:

The step which the determination required under pars 2 and 3 of Sch 2 of designation by the heads of the nominated agencies serves to confine those within the class or classes specified by the Board. Such designation does not itself alter the class or classes as specified by the Board. As the respondents pointed out, the designation by the heads of the nominated agencies or their subordinates of the individuals from their agencies who would participate in the special investigation would be done in any event.

128    However, it appears to have been assumed by Mansfield J that the head of agency had identified or would identify individuals in that case: whether that was the only manner by which identification by a head of agency (or delegate) could occur was not apparently discussed. Therefore I do not understand D v ACC to be authority that a head of agency must identify individuals rather than a class of persons.

129    Whilst the applicant's argument about the breadth of the identification under the Participants Instrument at first blush may have some attraction, I am not persuaded that the method of identification by the Commissioner was invalid.

130    There is no doubt that the scope of the Participants Instrument is broad, and in two regards. First, by the Participants Instrument the Commissioner has purported to make an identification that extends to persons whose duties include providing services in relation not only to the HRED3 operation, but to other intelligence operations that, on their face, cover a wide range of matters for investigation (see [42] above).

131    Second, the categories of persons identified by the Commissioner are also, at least on their face, broad, and likely to include a large number of WAPOL members. For example, the Participants Instrument includes the category of members or employees appointed to the Metropolitan Region and to Regional Western Australia. There was no evidence before me as to the organisational structure of WAPOL and so I am not able to discern whether those categories cover a significant proportion of all WAPOL members, or the extent to which the identified categories confine the number of members to a smaller subset. However, it is safe to assume that a potentially large number of members would fall within the category of members or employees appointed to the Metropolitan Region and Regional Western Australia.

132    It is perhaps not surprising that many members of WAPOL from a range of teams might have a role to play over time in providing services in relation to ACIC operations and investigations. In the case of the HRED3 determination, as noted above, the specified criminal activity being investigated includes activity that may have occurred, or may occur in the future, relating to high risk and emerging drugs and connected offences and so extends to a broad range of past and prospective offending. The identification of WAPOL members who qualify as falling within a class to participate in an intelligence operation by their membership of a subset, rather than by seeking to name each and every one of those persons, is understandable in such circumstances. But the question is whether it is valid.

133    The terms of para 10 of the HRED3 determination refer to 'the classes of persons to participate': it does not purport to require that the identity of those particular persons who are authorised to participate be fixed and recorded by name. The emphasis is on identifying classes. How that is to be done is not prescribed by para 3(b) of Schedule 2, other than by the requirement that it be in writing. That para 10 of the HRED3 determination requires that classes (not persons) be prescribed tells against the construction preferred by the applicant. It may be, particularly where a class is small, that the head of an agency might be in a position to name identified persons. But in my view the failure to name does not invalidate the identification process performed by the Commissioner. The ACC Act does not exclude identification by reference to other factors such as qualifications, status or job description.

134    The Commissioner has refined the general class referred to in para 3(a)(i) of Schedule 2, by the identification task referred to in para 3(b), from any officer or member of the staff of WAPOL to those officers or members of WAPOL who hold certain offices or positions, including being assigned to named teams. In this manner the Commissioner has identified those persons whose duties include providing services in relation to the intelligence operation under the HRED3 determination and so had identified the class of persons to participate in the intelligence operation. That is not to say that the identification might not have been more precise or done in a different manner. It might be feasible for heads of other agencies listed in para 3 of Schedule 2 to identify particular persons by name: whether that is so may depend on the role of the agency and the number of employees working in a particular area. However, as I have indicated, against the backdrop of the scope of the HRED3 determination, the potential involvement of members of WAPOL from a large number of teams and locations is hardly surprising.

135    The respondents submit that arguments about operational reality as referred to by Mansfield J apply equally to the heads of agencies. I am prepared to accept that there must be some regard paid to the practicalities of the head of an agency of the size of WAPOL repeatedly attending to changing staffing needs (both as to number and expertise). If the Commissioner (even by a delegate) were obliged to identify each and every person by name across the relevant positions within WAPOL, then the process might be unworkable. As a matter of construction, a broader understanding of how the Commissioner may 'identify' a person, being an understanding that permits reference to category or attributes rather than names, is to be preferred.

136    The applicant submits that the effect of upholding the validity of the Participants Instrument is that an enormous number of WAPOL officers are participants in the HRED3 operation, a result that has the potential to threaten the integrity of the examination and trial process. Indeed, it is said that 'thousands of law enforcement officers would be able to be present at an examination without informing the examinee'.

137    In my view the concerns expressed by the applicant as to the potentially enormous number of persons who may be 'members of staff of the ACC' if the Participants Instrument is valid is tempered by reference to the statutory terms.

138    First, the statute provides a range of protections, as discussed at [206]-[217] below (including s 51, s 25A(3) and s 25A(9)).

139    Second, the power to direct those who may be present at an examination is constrained. As an examination may be conducted under s 24A for the purposes of the special ACC operation/investigation, it follows that the power to direct those who may be present at an examination is similarly constrained: LHRC at [202] citing Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40 (Mason J).

140    Third, close attention should be paid to the text of the s 4 definition of 'member of the staff of the ACC'. The person referred to in para (b) in the s 4 definition of 'member of the staff of the ACC' is not simply any person who falls within the class or classes of persons 'to participate' in a relevant operation (s 7C) or 'a person whose duties include providing services in relation to' the relevant operation (Schedule 2). It is a person 'participating' in an ACC operation/investigation. The form of the verb, modifying 'persons', must not be overlooked. I consider the definition requires that in order to be a member of the staff of the ACC, not only must the relevant WAPOL member fall within the categories of persons identified by the Commissioner and so be a person who can participate, but they must also be participating in the relevant operation.

141    This construction of the definition, one that is supported by the applicant, means that the references in s 25A(3) and s 25A(7) to a member of the staff of the ACC is a reference to a smaller subset of the people included in the Participants Instrument. The risk, suggested by the applicant, of 'thousands of law enforcement officers' or even a large group of otherwise interested or uninterested WAPOL members attending an examination may be managed.

142    Some support for this construction may be found in Brady, where Hollingworth J was prepared to accept, having regard to the nominated AFP teams that were running the investigation, that particular AFP officers present at the examinations were persons 'whose duties include providing services in relation to the relevant determination', but considered that was not necessarily synonymous with 'participating in an ACC operation/investigation' for the purpose of para (b) of the definition of member of the staff of the ACC (at [550]). It was not necessary for Hollingworth J to determine the issue. However her Honour also noted that the concept of a person 'participating in an ACC operation/investigation' is very broad.

143    I note that there are other references to a 'member of the staff of the ACC' in the ACC Act (s 20(2)(a), s 21A(1)(a), s 25B(3)). The manner in which the phrase is used elsewhere does not direct that it should be given any meaning different to that I have preferred, and gives rise to no inconsistency.

144    Whilst not determinative of the scope of the meaning of the s 4 definition, I also note that Mr Lusty in this case did not proceed on the basis that the question as to who was a member of the staff of the ACC was answered by reference to the Participants Instrument. Indeed, he said he had not seen it. It is not a public document. Rather Mr Lusty proceeded on the basis that Officer Masterson's conduct and position, in part as explained to him by others, was determinative.

Evidence as to 'participating'

145    The evidence (examined in more detail below) reveals that Officer Masterson was taken by Mr Lusty to be participating in the HRED3 operation because he was part of the Organised Crime Squad; Officer Masterson was identified by the ACIC as someone who could assist Mr Lusty with the examination; Mr Lusty considered he was someone who could assist him during the course of the examination by utilising his local knowledge as an experienced detective; and Mr Lusty considered Officer Masterson could assist in making any recommendations as to further permitted dissemination of material to WAPOL.

146    The word 'participating' has a broad ambit, but merely being a member of the identified class of persons who may provide services will not of itself suffice. There must be some actual identifiable and relevant participation.

147    In my view, having regard to Officer Masterson's expertise, his actual participation in the examination and the prospective assistance he could provide to the examiner were sufficient for him to meet the broad description of a person 'participating' in the ACIC operation. The broad ambit of the HRED3 operation included references to prevention of future offending and so his lack of involvement in prior investigations was not to the point. Officer Masterson had many years of experience and was likely to have local knowledge about matters that might be relevant to past and future drug and related offending of other persons. He could assist Mr Lusty in considering whether the further dissemination of examination material might be useful. Until an examination occurs, it may not be known with certainty how a person authorised to attend may assist, and it may be that in the end there is little practical assistance given: but where the person has been identified as someone who has appropriate knowledge and experience to assist the examiner with the matters likely to arise during the examination, and where that person has the potential and capacity to assist, then I consider their attendance can properly be described as 'participating'.

Whether the Board should be regarded as having complied with its obligations

148    It follows that I consider that the Board is to be regarded as having complied with its obligations under s 7(1)(e) of the ACC Act. The Participants Instrument was not made through an impermissible delegation of power and it was sufficient to identify persons to participate by reference to a class of persons who could be identified by reference to their roles.

Whether Mr Lusty was right to proceed on the basis that Officer Masterson was a member of the staff

149    Accordingly I consider that Officer Masterson was a member of the staff of the ACC within the meaning of the s 4 definition and s 25A(7) of the ACC Act. Mr Lusty did not make an error of law in so finding. His obligations as examiner, which fall to be considered in detail below, are to be understood in that context.

Mr Lusty's evidence

Reasons provided after proceedings instituted

150    Consideration of the remaining grounds of challenge requires a detailed assessment of Mr Lusty's evidence.

151    Mr Lusty was not obliged under the ACC Act to provide reasons at the time of his decisions to authorise Officer Masterson's attendance and to decline to disclose his presence to the applicant. Mr Lusty first explained his reasons after these proceedings were commenced, the grounds for review and particulars had been identified, the applicant's affidavit evidence served and initial submissions filed. In such circumstances, it is perhaps inevitable that reasons may read as if they have been structured or contrived to avoid criticism. Absent direct evidence, issues of admissibility may arise. In this case, Mr Lusty provided his reasons by way of affidavit evidence and was available for cross-examination: Nezovic v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2003] FCA 1263; (2003) 133 FCR 190 at [59] (French J). It will, however, be necessary to comment on aspects of his evidence.

General views in advance of the examination

152    By his affidavit evidence, Mr Lusty referred generally to the views he held prior to any question of Officer Masterson's involvement. He said that prior to conducting the applicant's examination he formed the view that it was desirable for one or more appropriate officers or employees of WAPOL to attend in order to assist the ACIC, including [AA] and himself, in seeking to achieve the purposes of both the examination and the HRED3 special operation. Although experienced in conducting examinations elsewhere, this was Mr Lusty's first examination conducted in Perth.

153    Mr Lusty said that in particular he believed such an officer or employee would have greater knowledge of contemporary crime and law enforcement operations in Western Australia and could potentially assist the ACIC in relation to the following matters:

(a)    interpreting the evidence provided by the examinee, including by identifying persons, places and locations referred to by mere nicknames or general descriptions and providing the ACIC with further relevant information about them;

(b)    analysing the likely accuracy and completeness of the evidence provided by the examinee in light of existing information and intelligence holdings, especially WAPOL holdings;

(c)    identifying further lines of enquiry that could be pursued with the examinee or should not be pursued;

(d)    evaluating the significance of the evidence provided by the examinee including the extent to which it was likely to be relevant and not already known to law enforcement agencies; and

(e)    assessing whether any dissemination of examination material to other law enforcement agents, especially WAPOL, under s 59AA of the ACC Act should be considered.

154    Mr Lusty did not make a specific written record at the time of his view or the belief about why it was desirable to have an officer or employee of WAPOL attend the examination. He said that he addressed these issues generally in the emails he sent to [AA] (and I note there is some limited reference to this in the email Mr Lusty sent to [AA] on 30 January 2018).

155    Mr Lusty explained in some detail the process whereby decisions are made by the ACIC as to dissemination of material. He said that examiners themselves do not make such decisions, but that they are often involved in discussions about proposed dissemination, because, for example, the terms of confidentiality directions under s 25A(9) of the ACC Act may affect whether dissemination is possible. He said that decisions to approve the dissemination of examination material are made by the CEO of the ACC or their delegate (which does not include examiners).

156    Mr Lusty also referred to the confidentiality direction. He said that prior to conducting the examination of the applicant he had formed the view that it was necessary or highly desirable to prohibit certain categories of persons from attending the examination or receiving examination material in order to ensure compliance with provisions of the ACC Act prohibiting disclosure of post-charge examination material to prosecutors (and having regard to the broad definition of 'prosecutors' in the ACC Act).

157    His consideration of whether there should be a confidentiality direction is evidenced by his email to [AA] of 30 January 2018.

About Officer Masterson and his selection

158    Mr Lusty addressed particular communications and events relating to Officer Masterson. He said that by [AA]'s email communication of 30 January 2018 (see [52] above), he understood that the proposal about Officer Masterson made by Officer Taylor related to the dissemination of post-charge examination material to WAPOL, rather than the attendance of Officer Masterson or any other WAPOL officer at an examination. He said that Officer Taylor raised an example of when it might be appropriate for the dissemination of examination material to be made promptly to WAPOL in accordance with the ACC Act and the purposes of the HRED3 special operation. He considered that the information from [AA] in the email represented that Officer Masterson would be an appropriate recipient of examination material from post-charge examinations. He did not understand the email to be a request by Officer Taylor that Officer Masterson would actually attend any examination.

159    Under cross-examination, Mr Lusty referred to this email as the source of some of his knowledge about Officer Masterson: that he had known since that time that Officer Masterson was a new member of the investigating team who was not involved in the decision to charge any of the examinees; that [AA] must have considered he was suitable to receive any examination information that was subsequently disseminated; and that the ACIC would impress upon Officer Masterson that he could not discuss further any post-charge information he received.

160    It was not in issue that Officer Masterson was not involved in the WAPOL investigation relating to the applicant's alleged criminal offending. Mr Lusty was challenged as to why, taking into account the absence of any suggestion that Officer Masterson had any relevant knowledge about the investigation, Officer Masterson was an appropriate person to attend the examination, rather than an analyst as he had suggested in his email to [AA] of 30 January 2018.

161    Mr Lusty did not identify precisely when or how it was brought to his attention that Officer Masterson might attend the examination. In his affidavit evidence, Mr Lusty referred to 'a number' of telephone conversations between 30 January 2018 and 26 February 2018 with [AA]. He does not have a recollection of the actual words used and did not keep written records. However, he said he recalled that he indicated that he would like there to be one or more relevant officers or employees from WAPOL present at the examination to assist in the examination of the applicant, including in making an assessment of whether any dissemination should be made to WAPOL, as long as they did not fall within the categories of persons he proposed to prohibit from attending the examination or receiving examination material by virtue of his proposed confidentiality direction.

162    Mr Lusty said that [AA] suggested that Officer Masterson attend the examination of the applicant and [AA] indicated 'that his attendance would assist us and be appropriate'. Mr Lusty said in his affidavit:

[AA] suggested that Detective Senior Constable Drew Masterson attend the examination of [the applicant] and [AA] indicated that his attendance would assist us and be appropriate. In so doing, [AA] mentioned some of the same matters referred to in [AA's] email to on 30 January 2018 … and [AA] either informed me, or I realised myself, that this was the same person [AA] previously referred to as Detective Senior Constable Drew 'Matheson'.

[AA] at no stage indicated to me that [AA] was merely proposing that Mr Masterson attend the examination in order to comply with a request or direction from Mr Taylor or anyone else at WAPOL or that [AA] was otherwise acting at their behest. On the contrary, [AA] indicated to me that [AA] considered that Mr Masterson's attendance would assist the ACIC and be appropriate.

I indicated to [AA] that I agreed with the suggestion that Mr Masterson attend the examination of [the applicant].

[AA] did not indicate to me that [AA] disagreed with any of the matters I referred to in my email of 23 February 2018, including the views I had expressed about every person attending any examination being a 'member of staff of the ACC', and did not suggest that Mr Masterson was not a member of the staff of the ACC.

163    Mr Lusty said that the ACIC was looking at broader issues, well beyond the 'historical investigation' of the applicant. He accepted that it would have been of benefit to have someone present who 'knew what was going on' with the subject matter of the investigation. He also accepted that some of the questioning of the applicant would be related to the applicant's past alleged offending. But he denied that it was necessarily the case that for a person to meaningfully assist they would need to have some understanding of the investigation. He repeated on a number of occasions that the purpose of the investigation was to try and obtain information and intelligence that would be relevant to identifying current and future criminal activities involving other persons who were persons of interest. Mr Lusty said he wanted someone to help with the examination. He expected that Officer Masterson would have knowledge of 'the subject matter of the examination' as the focus was not on the applicant but on major well known suspected criminals who had been the subject of WAPOL investigations for years. Mr Lusty was challenged by senior counsel for the applicant about his basis for believing that Officer Masterson knew anything useful in the following exchange:

Counsel:    You had no evidence before you, did you, to suggest that Mr [Masterson] would have knowledge of those matters?

Mr Lusty:    I did have evidence. I knew that by virtue of his position as a detective senior constable that he would be a senior police office with significant training and experience. I knew he was a member of the Organised Crime Squad, which is the most relevant section of WAPOL to the ACIC and by virtue of that position, he was likely to have information relating to the main persons of interest to us in relation to these proposed examinations. Namely, the leaders of the syndicate that the applicant was suspected of being involved in.

 Counsel:    Was that what you thought at the time, was it, Mr Lusty?

Mr Lusty:    At the time, I assumed he would have relevant knowledge, by virtue of his position.

Counsel:    That's what you assumed, is it?

 Mr Lusty:    Yes.

Counsel:    You had no evidence before you to make good that assumption, did you?

Mr Lusty:    Well, I've explained to you the evidence. I knew of his seniority. I knew of the position he was involved in and I knew of the proposal to involve him further in relation to this work.

…

Counsel:    You knew, didn't you, that [Masterson's] limited involvement meant that he wasn't a person who could fulfil the types of assistance that you've indicated there, were needed for the purposes of the examination?

Mr Lusty:    No, I believed he could assist us. Just to clarify, the examination and the ACICs interest, extended well beyond this particular applicant. We were focussing on current and future criminal activities by other persons, including the suspected leaders of the syndicate that the applicant was a suspected member of. And those leaders were suspected of continuing to operate despite the fact that some members of the syndicate, including the applicant, had been arrested previously.

Counsel:    But you didn't have anything before you to suggest that [Masterson] knew anything at all about that, did you?

Mr Lusty:    No specific information, apart from the fact that his position, his level and the fact that it was proposed that he would work with the ACIC in the future in relation to these matters.

164    Mr Lusty was asked how it was that Officer Masterson, who had only been in the team for about a month, would be in a position to assist with interpreting the evidence by identifying persons referred to by nicknames (one of Mr Lusty's stated objectives for a police officer at the examination). He said that Officer Masterson could potentially be able to provide that assistance by virtue of his seniority and his position within the Organised Crime Squad and 'his access to intelligence holdings at WAPOL'. He said that he also took into account that Officer Masterson had been proposed to assist the ACIC a few weeks before the examination and that it was proposed that his assistance would be ongoing.

165    When asked if an analyst could provide that information, he accepted that was the case, although he said a detective is likely to have more on the ground knowledge and information.

166    When asked whether any other detective senior constable could have performed the role undertaken by Officer Masterton, Mr Lusty said that anyone else within the Organised Crime Squad potentially could have assisted but that most of those people would have been excluded from appearing at the examination because they were involved in the current criminal prosecution of the applicant.

167    Mr Lusty denied that he relied on [AA]'s opinion as to whether Officer Masterson was an appropriate person to attend. Mr Lusty said he relied on information given by [AA] as a [redacted] lawyer, [redacted], and took into account [AA]'s suggestions.

168    Mr Lusty referred on a number of occasions to telephone conversations he had with [AA]. He was asked about those conversations. He said there was a record of those conversations in the emails. He also said under cross-examination that he went to an office in Perth and had a discussion with [AA] shortly before the commencement of the examination. He said he had 'quite detailed discussions with [AA] and sent these quite detailed emails about the matters we were discussing'. At one point he said he recalled the reasons that Officer Masterson was identified to attend the examination because 'the subject was addressed extensively in the four weeks prior to this examination'.

169    Mr Lusty could not recall when he was informed that Officer Masterson was proposed to attend. He said he believed he knew by 23 February 2018 but could not recall whether he knew before or after he sent his email of 23 February 2018.

170    I have some concerns about Mr Lusty's evidence as to the process of selection of Officer Masterson. I am of the view that Mr Lusty has exaggerated the number and quality of the interactions he had with [AA] as to the identification of Officer Masterson as a suitable person to attend the examination. The emails do not point to any conversations in which [AA] informed Mr Lusty that [AA] had identified Officer Masterson as the person who would attend the examination. [AA] did not refer to conversations of that nature. If, as he asserted, Mr Lusty recalled detailed and extensive discussions with [AA], then one would have expected to see at least some recall of detail about what was said.

171    I also consider that Mr Lusty's evidence that other people in the Organised Crime Squad were unlikely to be available, in the absence of any other evidence on that point, was little more than conjecture. The source of his knowledge about the allocation of other resources to the prosecution was not explained. Mr Lusty also said in his evidence that he did not have any significant knowledge about the way WAPOL works. At one point he said that he was not suggesting that Officer Masterson was the only person who could provide assistance, but later in his evidence said that he was not aware of other people who could fulfil that role.

172    The difficulties that I have identified do not lead me to reject Mr Lusty's evidence, but are examples of where I considered his evidence was unduly self-serving. Ultimately, as I explain below, that does not affect the result.

173    Finally on this point, Mr Lusty said that he independently made the decision to permit Officer Masterson to attend the examination and he 'did not take into consideration or act for any purpose relating to, any kind of direction or stipulation from Mr Taylor (or anyone else at WAPOL) to the ACIC'.

Mr Lusty's knowledge about whether Officer Masterson a member of the staff of the ACC

174    Mr Lusty had no recollection of meeting Officer Masterson in relation to or after the examination. As to the reasons for believing that Officer Masterson was a 'member of the staff of the ACC' Mr Lusty said the following in his affidavit:

(a)    I was aware of the definition of 'member of the staff of the ACC' in s.4(1) of the ACC Act.

(b)    I was aware of the terms of the HRED3 Determination, including paragraph 10 and Schedule 2.

(c)    I was aware that broad classes of officers and employees of State police forces had been authorised to participate in the HRED3 Special Operation and were members of the staff of the ACC.

(d)    In paragraph 91 of the Application it was stated 'The [WAPOL] officers involved in [the applicant's] criminal investigation will be advised (as ACIC members of staff) that he will be examined'.

(e)    I was aware that Mr Masterson was a member of the same WAPOL team that had been involved in [the applicant's] criminal investigation and thus likely to be in the same 'class' as them for the purpose of any aforementioned authorisation.

(f)    The contents of my email communications with [AA] between 14 and 26 February 2018, as referred to and explained in paragraphs 24 to 27 above.

(g)    The contents of my conversations with [AA] referred to in paragraph 28 above.

 (h)    The contents of the Authority to Attend form …

175    The matters at (a) and (b) above of the affidavit are of such generality that they do not assist, particularly as Mr Lusty was not aware of the terms of the Participants Instrument.

176    Nor does (c) assist greatly, except to suggest that based on his experience in other States, there was an Australia-wide practice of authorising broad classes of officers and employees of State police forces for the purposes of the HRED3 determination.

177    The matters at (d) and (e) have some weight. Mr Lusty suggested by that evidence that he assumed that all members of the Organised Crime Squad would fall under the same classification for the purpose of the HRED3 determination, and so Officer Masterson would also be a member of the staff of the ACC. The Organised Crime Squad was the squad of most relevance to the ACIC. The representation in the application for the summons about team members being members of staff was made in the section signed by the 'Head of the Determination'. There would seem to be a valid basis for his assumption that all members of that squad would be members of the staff of the ACC, having regard to his evidence that it was his experience that broad classes of police force officers were authorised to participate in HRED3 operations.

178    The matters at (f) are problematic. Mr Lusty referred in his affidavit to his email to [AA] of 23 February 2019 (see [68] above) and, relevantly, said the following:

26.    …

(e)    In my 2nd paragraph, after referring to the 'attendance list for the examination' of [the applicant], I stated 'I would prefer it if everyone on the list for all examinations was a "member of staff of the ACC" and in my 5th paragraph I similarly stated that any relevant police officers attending pre-charge examinations 'should all be "members of staff if [sic] the ACC". I regarded these statements from me as indicating to [AA] that I wanted every attendee at all of the proposed examinations, including of [the applicant], to be a 'member of the staff of the ACC' as defined in s.4(1) of the ACC Act. This reflected the usual practice of the ACIC in relation to the attendance at examinations of persons from external agencies […].

27.    On 26 February 2018 I sent a follow-up email to [AA] in which I stated 'Is this all ok?' and [AA] replied 'Yes, I thought the draft [Examiner Confidentiality Directions] were fine'. I interpreted this reply as [AA] indicating that [AA] agreed with all of the matters I referred to in my email of 23 February 2018, including the views I had expressed about every person attending any examination being a 'member of staff of the ACC'. After receiving this email I sent [AA] a further email in which I stated 'We can have a chat now if you are free'. Shortly afterwards [AA] and I had a discussion about the proposed imminent examination of [the applicant].

179    There were other occasions in the evidence when Mr Lusty said that his 26 February 2018 email said that every person who attended an examination was to be a member of the staff of the ACC. See, for example, the final paragraph of the evidence extracted at [162] above. Further, in cross-examination there was the following exchange:

Counsel:    And you expressed a preference for the people on the list to be a member of staff?

Mr Lusty:    Yes. I would say it was a bit more than a preference but I raise the issue again three paragraphs down in that email, and I was making it clear that I expected everyone at all of these examinations to be a member of the staff of the ACC.

180    I note that the reference to 'three paragraphs down' was a reference to the paragraph in his letter of 23 February 2018 to [AA], where he said in regard to pre-charge witness examinations that all police officers present should be members of the staff of the ACC.

181    Mr Lusty also said in cross-examination:

I relied on the fact that counsel assisting was aware of my expectation that everyone at the examination would be a member of staff.

182    On a fair reading of his 23 February 2108 email, Mr Lusty does not say that everyone present at the applicant's examination was to be a member of the staff of the ACC. He says only that it was his preference. That undoubtedly leaves room for consideration of the position of others. I do not accept his assertion that he 'made it clear' that he expected everyone to be a member of staff. His reference to the situation with pre-charge witness examinations does not assist him.

183    I also found Mr Lusty's evidence at para 27 of his affidavit (see [178] above), which he maintained under cross-examination, somewhat troublesome. Mr Lusty relied on the email exchange with [AA] as a representation by [AA] that [AA] agreed with everything that had been said in the email, including that '[AA] agreed with my assessment that all attendees should be a member of the staff of the ACC'. As is evident on the face of the email exchange, [AA] addressed the draft confidentiality direction. Read fairly, objectively and in context, [AA]'s email does not go further.

184    As to the matter at (g), I have already indicated that I consider Mr Lusty exaggerated the number and detail of the calls. However, I accept that there was some discussion between Mr Lusty and [AA] shortly prior to the examination. After all, Mr Lusty was flying in from interstate and it can be accepted that there would be at least some discussion between himself and [AA], as his counsel assisting, prior to the examination commencing on 26 February 2018. A 'chat' was flagged in the email exchange of 26 February 2018 and this is one occasion where Mr Lusty was able to refer to a conversation on a particular date 'about the examination': see para 27 cited at [178] above.