A. B. Pty Limited v Australian Crime Commission

NEW SOUTH WALES DISTRICT REGISTRY NSD 2013 of 2008

THE COURT ORDERS THAT: 1. The time within which the Application for an Order of Review is to be filed is extended to 24 December 2008. 2. The Amended Application for an Order of Review as filed on 23 January 2009 is dismissed. 3. The Applicant is to pay the costs of the Respondents. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using eSearch on the Court's website.

NEW SOUTH WALES DISTRICT REGISTRY NSD 2011 of 2008

NEW SOUTH WALES DISTRICT REGISTRY NSD 2013 of 2008

REASONS FOR JUDGMENT 1 There are presently two proceedings before the Court. Those proceedings concern the validity of notices issued under s 29 of the Australian Crime Commission Act 2002 (Cth). The Applicant in each proceeding is the company upon which notices have been served. By reason of the terms of s 29A of that Act, the name of each Applicant is a pseudonym. 2 On 8 December 2008 notices issued pursuant to s 29 were first served upon each of the Applicants. Those notices required the production of documents by 17 December 2008. On 8 December 2008, and shortly thereafter, the General Counsel for the Applicant A.B. Pty Limited telephoned an officer of the Commission and stated that it was not possible to comply with the notices within the time permitted. No documents were produced by 17 December 2008. 3 On 16 January 2009 fresh notices in substantially identical terms were issued to each of the Applicants. Some categories of documents, apparently, were no longer required by reason of prior production. The January 2009 notices required the production of documents by 30 January 2009. 4 It is contended by the Applicants that the notices are invalid. 5 Applications for Orders of Review seeking the review of the notices served in December 2008 were first filed with the Court on 24 December 2008. Amended Applications were thereafter filed on 23 January 2009, the amendments purporting to seek review of the decisions taken on 16 January 2009. Those Applications contend that the decisions to issue the notices are invalid because the decisions: · were not authorised by s 29(1)(b) of the 2002 Act; and · were an improper exercise of the power conferred by s 29(1)(b). These two grounds invoke s 5(1)(d) and (e) respectively of the Administrative Decisions (Judicial Review) Act 1977 (Cth). 6 Section 57 of the 2002 Act amends s 11 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) by prescribing a period of 5 days within which an Application of Review is to be filed. Both of the Applications as first filed were outside that period, although it is contended by the Applicants that the Amended Applications as filed on 23 January 2009 were within time to review the 16 January 2009 notices. Power is given in any event to extend that time if there are "special circumstances". The Applicants accepted that an extension of time is required, at least in respect to the earlier notices. Oral evidence in support of the application for an extension of time sought to establish that the solicitor for the Applicant: (i) acted with some degree of promptitude after becoming aware that a notice had been served upon his client in obtaining the legal advice of both Junior and Senior Counsel; and (ii) was otherwise unaware of the time within which an application was to be filed. 7 Considerable reservation is expressed as to whether such facts alone constitute "special circumstances". Counsel for the Commission opposed the extensions of time but could point to no prejudice. Given the fundamental importance of the issues sought to be raised by the Applicants as to the administration of the 2002 Act, it is considered that time should be extended in both proceedings. 8 The Applicants accept that they bear the onus of proving the invalidity of the notices: cf Australian Securities Commission v Lucas (1992) 36 FCR 165 at 177 per Drummond J; X v Australian Crime Commission [2004] FCA 1475 at [22], 139 FCR 413 at 419 to 420 per Finn J; Kennedy v Baker [2004] FCA 562 at [85] to [86], 135 FCR 520 at 542 to 543 per Branson J. 9 Although it is apparently common ground between the parties that the December 2008 notices are now spent, the hearing has been given an early final hearing because the time for compliance with the January 2009 notices has been extended, most recently to 4 pm on 20 February 2009. Although time could be further extended if necessary, it is desirable that the issues be resolved expeditiously. The time available for the hearing and resolution of the competing submissions, however, has necessarily been limited.

The December 2008 Notices 10 Omitting such information as may identify the name of the Applicant, the Schedule in the first notice identified the documents to be produced as follows: Electronic copies, or where they are not available, paper copies of … * records containing the following information and the following documents: 1. Details of all personnel employed, contracted or engaged directly or indirectly by … as at the date of this notice, including, full name, date of birth, address, employment status (eg full-time, part-time or casual), period of employment, type of … held (in the case of … ), Tax File Number (TFN) and Australian Business Number (ABN). 2. Details of all venues/contracts currently serviced directly or indirectly by […] including venues where there is no written or formal agreement of service. 3. All corporate records, including: i. Certificate of registration/incorporation; ii. Register of members (shareholders); iii. Register of directors; iv. Register of Secretaries; v. Share of allotment and share transfer journals; vi. Share certificates; vii. ASIC statutory returns viii. All documents lodged with ASIC (where available); ix. Minutes of general meetings; x. Minutes of meetings of directors; xi. Register of charges created by the company over company property; and xii. Company seal. 4. Annual financial statements for the financial years ending 30 June 2005 to 30 June 2008, including: i. Statement of Financial Performance - a statement showing the company's revenue and expenses and the profit or loss that results from these items; and ii. Statement of Financial Position - a statement showing the things of value the company owns and the debts the company owes. 5. Bank statements for the for the [sic] financial years ending 30 June 2005 to 30 June 2008. 6. Sales/income records (e.g. a list of current debtors and their balances, a list of all sales transactions for the financial years ending 30 June 2005 to 30 June 2008). 7. Creditor records (e.g. a list of all creditors and their balances for the financial years ending 30 June 2005 to 30 June 2008). 8. Wage and superannuation records for the financial years ending 30 June 2005 to 30 June 2008. 9. Tax returns and calculations (e.g. income tax, group tax, fringe benefits tax and GST returns and statements) for the financial years ending 30 June 2005 to 30 June 2008. 10. Related trust deeds. 11. Service contracts and agreements entered into with related and independent third parties for the provision or use of all services for the financial years ending 30 June 2005 to 30 June 2008. * The term … in this schedule includes all business units or subsidiary companies of … The only notation on the face of this notice, and each of the other notices issued pursuant to s 29, informing the person to whom it was given as to the purpose for which the notice was issued is the notation that the "Australian Crime Commission is conducting a special operation" and that an examiner whose signature is indecipherable states that he is "satisfied that it is reasonable in all the circumstances to do so" to require the production of the documents thereafter listed in the Schedule. The identity of the examiner is not otherwise stated - nor any means disclosed by which to establish his identity or even whether he has been properly appointed as an examiner. What the "special operation" is is also left without further elaboration. But the notice does disclose the detail that it was "(i)ssued at 11.32 hours on 8 December 2008". 11 The January 2009 notice to A.B. Pty Limited excludes items 1, 3 and 5; the January 2009 notice to A.C. Pty Limited excludes items 1, 3, 5, 8 and 10. Documents in purported compliance with items 1, 5 and 8 were produced on 12 January 2009. 12 All parties are in agreement that the issues to be resolved can conveniently be addressed by looking at the terms of the December 2008 notice to A.B. Pty Limited and to such facts as may be relevant as occurred prior to the issue of the January 2009 notices. The assumption was that that evidence was relevant to both of the January 2009 notices. 13 All notices, the Applicants contend, were not authorised by s 29 because: (i) a notice to be valid must identify the documents sought to be produced with a reasonable degree of particularity - and each of the notices lacked the requisite degree of particularity or specificity as required by s 29; (ii) when making the decision to issue the notices, the examiner failed to take into account a relevant consideration - namely the relevance of the documents to the special operation being undertaken; and (iii) a notice to be valid must permit a reasonable time within which the documents required to be produced may be collated and thereafter produced - the time permitted by the notices being said to be unreasonable. The ambiguity and lack of precision in the terms employed in the notice was said by the Applicants to only compound the difficulties involved in complying with the notices within the times allowed. These submissions are probably quite discrete - if there is an ambiguity in the terms employed by a notice such that it cannot be said to be authorised by s 29, it would not matter how much time was allowed for compliance.

The Statutory Context and Section 29 14 The Australian Crime Commission Act 2002 (Cth) repeals the National Crimes Commission Act 1982 (Cth) (s 3) and establishes the Australian Crime Commission (s 7(1)). 15 Section 7A sets forth the important functions entrusted to the Commission as follows: The ACC has the following functions: (a) to collect, correlate, analyse and disseminate criminal information and intelligence and to maintain a national database of that information and intelligence; (b) to undertake, when authorised by the Board, intelligence operations; (c) to investigate, when authorised by the Board, matters relating to federally relevant criminal activity; (d) to provide reports to the Board on the outcomes of those operations or investigations; (e) to provide strategic criminal intelligence assessments, and any other criminal information and intelligence, to the Board; (f) to provide advice to the Board on national criminal intelligence priorities; (g) such other functions as are conferred on the ACC by other provisions of this Act or by any other Act. 16 Section 29, the power presently in issue, provides as follows: Power to obtain documents (1) An examiner may, by notice in writing served on a person, require the person: (a) to attend, at a time and place specified in the notice, before a person specified in the notice, being an examiner or a member of the staff of the ACC; and (b) to produce at that time and place to the person so specified a document or thing specified in the notice, being a document or thing that is relevant to a special ACC operation/investigation. (1A) Before issuing a notice under subsection (1), the examiner must be satisfied that it is reasonable in all the circumstances to do so. The examiner must also record in writing the reasons for the issue of the notice. The record is to be made: (a) before the issue of the notice; or (b) at the same time as the issue of the notice; or (c) as soon as practicable after the issue of the notice. (2) A notice may be issued under this section in relation to a special ACC operation/investigation, whether or not an examination before an examiner is being held for the purposes of the operation or investigation. (3) A person shall not refuse or fail to comply with a notice served on him or her under this section. (3A) A person who contravenes subsection (3) is guilty of an indictable offence that, subject to this section, is punishable, upon conviction, by a fine not exceeding 200 penalty units or imprisonment for a period not exceeding 5 years. (3B) Notwithstanding that an offence against subsection (3) is an indictable offence, a court of summary jurisdiction may hear and determine proceedings in respect of such an offence if the court is satisfied that it is proper to do so and the defendant and the prosecutor consent. (3C) Where, in accordance with subsection (3B), a court of summary jurisdiction convicts a person of an offence against subsection (3), the penalty that the court may impose is a fine not exceeding 20 penalty units or imprisonment for a period not exceeding 1 year. (4) Subsections 30(3) to (5) and (9) apply in relation to a person who is required to produce a document or thing by a notice served on him or her under this section in the same manner as they apply in relation to a person who is required to produce a document or thing at an examination before an examiner. (5) A failure to comply with any of the following provisions does not affect the validity of a notice under subsection (1) of this section: (a) subsection (1A) of this section, in so far as that subsection relates to the making of a record; (b) section 29A, in so far as that section relates to a notice under subsection (1) of this section. Provision is made in s 46B for the appointment of an "examiner" by the Governor-General. An examiner has, "in the performance of his or her functions … the same protection and immunity as a Justice of the High Court": s 36(1). Section 29 had as its counterpart s 29 in the National Crime Authority Act 1984 (Cth). 17 An examiner may conduct an examination for the purposes of a "special ACC operation/investigation": s 24A. That phrase is defined by s 4 as meaning: (a) an intelligence operation that the ACC is undertaking …; or (b) an investigation into matters relating to federally relevant criminal activity that the ACC is conducting … In addition to the power conferred by s 29, s 28 confers a power to summon witnesses and take evidence. Provision is also made for those circumstances where a witness fails to attend or fails to answer questions asked during an examination (s 30) and also for the issue of a warrant for the apprehension of a person (s 31). 18 The 2002 Act confers extensive powers which the legislature has considered are appropriate and necessary. It is also an Act, however, which has the very real potential to intrude upon the liberty and privileges of an individual. 19 The statutory power conferred upon an examiner to compulsorily obtain documents is in itself a provision which seriously intrudes upon the ability of a person to keep his documents otherwise confidential to himself. Given both the potential for a serious erosion into the confidentiality of an individual's documents and the consequences for non-compliance (including a substantial fine and/or imprisonment), it is a provision which must be construed according to its terms such that no greater power is in fact exercised than the words employed by the legislature permit. As noted by French J (as His Honour then was) in Commissioner of Taxation v Citibank Limited (1989) 20 FCR 403 at 433: Australia is a liberal democracy with a broad tradition of at least nominal resistance to encroachment upon established rights and freedoms. That view is reinforced by its adherence to the International Covenant on Civil and Political Rights, which relevantly provides in Art 17, inter alia, that: "No-one shall be subject to arbitrary or unlawful interference with his privacy, family, home or correspondence …" The nature of this society, and its tradition of respect for individual freedoms, will support an approach to construction which requires close scrutiny and a strict reading of statutes which would otherwise remove or encroach upon those freedoms. But where the natural meaning of the words is clear, the will of the Parliament must be respected. Legislation, it has been accepted, will not be construed so as to deprive a person of an important common law right, privilege or immunity, if otherwise available, "unless a legislative intent to do so clearly emerges, whether by express words or necessary implication": A v Boulton [2004] FCAFC 101 at [54], 136 FCR 420 at 434 per Kenny J (Beaumont and Dowsett JJ agreeing). 20 It is (perhaps) surprising that the legislature has thus seen fit to specify few express constraints upon the exercise of the power conferred by s 29. But such constraints as have been imposed include the requirement that the document or thing required to be produced is "a document or thing that is relevant to a special ACC operation/investigation"; that the "document or thing" required to be produced must be "specified in the notice"; and the requirements that an examiner must be "satisfied that it is reasonable in all the circumstances" to issue a notice and that "the reasons for the issue of the notice" be recorded in writing. Given the width of the power conferred, it is (perhaps) equally surprising that that which may be the subject of a notice also has the potential to lack certainty - a "document" can be readily identified; but that which constitutes a "thing" will presumably be resolved over time. 21 Other constraints upon the power may also be readily implied. These implied constraints would include the requirement that the power be exercised in good faith and for the purpose for which it was conferred: cf O'Reilly v the Commissioners of the State Bank of Victoria (1983) 153 CLR 1 at 48 per Mason, Murphy, Brennan and Deane JJ. 22 The arguments now sought to be advanced in respect to s 29 have not been the subject of prior judicial consideration. Nor was the now repealed s 29 of the National Crime Authority Act 1984 (Cth) the subject of judicial consideration. 23 But some guidance may be gleaned from other statutory provisions which authorise the issuing of a notice requiring the production of documents. The best known examples are perhaps s 155 of the Trade Practices Act 1974 (Cth) and s 264 of the Income Tax Assessment Act 1936 (Cth). Other examples of similar statutory provisions may also be given: eg Bankruptcy Act 1966 (Cth) s 77C; Australian Securities and Investments Commission Act 2001 (Cth) ss 30 to 33. When considering s 264 of the 1936 Act in Grant v Commissioner of Taxation [2000] FCA 1383, 104 FCR 1, Black CJ, Merkel and Finkelstein JJ relevantly observed: [12] There are competing factors to be taken into account when considering the proper construction of s 264. On the one hand, it is to be remembered that the section interferes with a person's freedom to elect not to provide information, whether it is to the revenue authorities or to a law enforcement agency. Not only is s 264 an interference with personal liberty, a refusal or failure to comply with s 264 is an offence, attracting a fine or even a term of imprisonment: see ss 8C, 8D and 8E of the Taxation Administration Act 1953 (Cth). On the other hand, the principal source of revenue for the Commonwealth is income tax. It is notorious that many and varied devices are employed to avoid the incidence of that tax. Sometimes, outright fraud is involved. For this reason the Parliament found it necessary to give the Commissioner power to make wide ranging enquiries to investigate whether tax is due. In these circumstances, the Court should proceed on the footing that the intention was to give the Commissioner an effective, but not an oppressive or unfair, power of investigation. There are like "competing factors" to be taken into account in the present statutory context. Lord Denning MR observed that "[i]n a wicked world, it not unknown for books and papers to be destroyed or lost": Norwest Holst Ltd v Secretary of State for Trade [1978] Ch 201 at 224. That was in 1978. The world is now even more "wicked" - and even less safe. 24 Presumably there is no requirement upon an examiner in all cases to extend to a person served with a notice issued under s 29 of the 2002 Act any prior opportunity to be heard. No such requirement has been imposed before issuing a notice under s 264 of the Income Tax Assessment Act 1936 (Cth) (Sixth Ravini Pty Ltd and Eighth Oupan Pty Ltd v Federal Commissioner of Taxation (1985) 6 FCR 356 per Northrop J) or s 33 of the Australian Securities Commission Act 1989 (Cth) (Minosea Pty Ltd v Australian Securities Commission (1994) 35 ALD 493 per Lindgren J). 25 No challenge is made in the present proceedings that: · the notices are not valid because it was not open to the examiner "to be satisfied that it is reasonable in all the circumstances" to issue the notices; · the notices are not valid by reason of any failure to include any notation on the face of the notice as to the purpose for which the notice has been issued or the particular "special ACC operation/investigation" to which the documents sought are said to be relevant; or · the notices are not authorised by s 29 because they require not the production of an existing "document or thing", but rather require the person served with the notice to go away and to produce a "document or thing" which otherwise does not exist so that it can thereafter be produced. Insofar as the last proposition is concerned, it may be noted that the introductory words to the notice are as follows: Electronic copies, or where they are not available, paper copies of … records containing the following information and the following documents … Those appearing for the Commission accepted that there would be compliance with the present notices if there were produced "electronic copies" of the documents thereafter mentioned. The notices would not require "electronic copies" to be generated if they otherwise were not within the possession or control of the Applicants. It was also accepted by the Commission that if there were no such "electronic copies" and there were not available "paper copies" of those documents, the notices similarly would not require the person served to go away and produce a paper copy such that it could thereafter be produced in compliance with the notices. The Commission reserved its position as to whether s 29 could in other cases be invoked to impose an obligation to produce a "document or thing" not otherwise presently in existence. 26 Although guidance may be gained from the manner in which other statutory provisions have been construed and applied, it remains the terms of s 29 which dictate the conclusion to be reached in the present proceedings. Counsel for the Applicant properly did not contend otherwise. Some difficulty is encountered by reason of the difference in language employed in the various statutory provisions.

Uncertainty 27 The contention that the notices are not authorised, or beyond such power as is conferred by s 29, by reason of the uncertainty as to the documents required to be produced must be rejected. 28 The uncertainty relied upon in support of the contention that the notices are not authorised seizes upon the following expressions found within the notices, namely: · a "business unit" - that being a phrase which expands the ambit of the entities required to produce documents beyond the named company and extending to "all business units or subsidiary companies"; · "all corporate records"; · "indirectly" - that being a term which is applied to "all personnel employed … directly or indirectly" and to "venues/contracts currently serviced directly or indirectly"; and · the terms "company" and "company's" 29 As the terms of s 29(1)(b) expressly provide, a notice may require the production of a "document or thing specified in the notice…". No greater guidance is provided by the legislature as to the manner in which a document or thing may be identified, other than it must be "specified in the notice". 30 The gravity of the consequences that may flow from non-compliance with a notice, it is considered, is a factor relevant to determining the degree of specificity required: cf Fieldhouse v Commissioner of Taxation (1989) 25 FCR 187 at 208 per Hill J. 31 Section 29 is in different terms to s 155 of the Trade Practices Act 1974 (Cth). Section 155 uses the term "specified" on a number of occasions - but not to describe the information required to be produced when that section is invoked. Section 155 refers to the statutory requirement that there be reason to believe that a person is capable of "furnishing information … relating to a matter that constitutes, or may constitute, a contravention of this Act". The section then authorises the issue of a notice requiring the production of "any such information …". Subject to noting that difference in language, in Pyneboard Pty Ltd v Trade Practices Commission (1982) 57 FLR 368, Northrop, Deane and Fisher JJ relevantly observed at 372: Questions of ultra vires aside, we would respectfully agree with Fox J that uncertainty or ambiguity will not invalidate subordinate legislation or a written directive issued under statutory power unless a point is reached where it cannot reasonably be given any meaning. Strictly speaking, when this point is reached, what is involved is not a matter of mere ambiguity or uncertainty. As Lord Keith of Avonholm commented in Fawcett Properties Ltd v Buckingham County Council ([1961] AC 636): "If it is impossible, on construction of the condition, to reach a conclusion as to what was in the craftsman's mind, the condition is meaningless and must be read as pro non scripto It is not a question of ambiguity. If a clause may convey several different meanings it is for the court to say, looking at the general background, surrounding circumstances, subject-matter of discourse and other aids derived from the context of the clause, supplemented not infrequently by certain legal presumptions, what meaning is to be attributed to the clause" ([1961] AC at 670). Their Honours further observed at 375: The requirement that a notice under s 155(1) convey, with reasonable clarity, to the recipient what information he is required to furnish or what documents he is required to produce is not to be applied in a precious or hypercritical fashion (see Melbourne Home of Ford Pty Ltd v Trade Practices Commission (No 3) (1980) 47 FLR 163). Artificial dissection, in the cause of determined obfuscation, can introduce an argumentative element of uncertainty into words which, when read reasonably in context, are adequate to convey a plain and clear meaning. Provided a notice makes it reasonably clear, in the circumstances in which it is given and on a fair reading of its terms, what information or documents are required, the requirements of s 155(1) as to clarity will be satisfied. In this regard, the mere fact that parsing and analysis in the artificial atmosphere of the courtroom can lead to the identification of a number of latent ambiguities will not invalidate what, as a matter of common sense, is reasonably clear. On appeal, the decision was affirmed: Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328. See also: S A Brewing Holdings Ltd v Baxt (1989) 23 FCR 357 at 370 per Fisher and French JJ; Telstra Corporation Ltd v Australian Competition and Consumer Commission (No 2) [2007] FCA 493 at [36] to [43], 97 ALD 652 at 660 to 662 per Bennett J. Each statutory provision, of course, presents its own potential difficulties in construction. Section 155, for example, employs the language of "information" (Seven Network Ltd v Australian Competition and Consumer Commission [2004] FCAFC 267 at [18], 140 FCR 170 at 175 to 176 per Tamberlin J) - a term less certain in meaning than a "document". 32 Section 264 of the Income Tax Assessment Act 1936 (Cth) likewise employs different language to that employed by s 29 of the 2002 Act. Section 264 authorises, subject to its terms, a notice to be given by the Commissioner requiring a person "to furnish him with such information as he may require …". Gibbs ACJ said that "(t)o be valid a notice to produce documents under s 264(1)(b) must of necessity identify with sufficient clarity the documents which are required to be produced": Federal Commissioner of Taxation v Australia and New Zealand Banking Group Ltd (1979) 143 CLR 499 at 525. Difficulty confronting a person in properly construing a notice is not sufficient to render a s 264 notice invalid. Mason J referred to the expression found in s 264(1)(b) "relating thereto" and continued at 537: It is then for the recipient to decide for himself, difficult though the task may be, which of the documents answer the description. If his decision is wrong he exposes himself to prosecution and penalty. The existence of this hazard is not a sufficient basis for the conclusion that the section requires the Commissioner to give a notice in such terms as would enable the recipient on reading it and on examining the documents in his custody or control to determine whether they fall within the ambit of the Commissioner's powers. To so hold would be to impose an impossible burden on the Commissioner. A notice which is valid under s 264 may thus be "of considerable breadth": Fieldhouse v Commissioner of Taxation (1989) 25 FCR 187 at 193 per Hill J. His Honour there further observed that the validity of a notice should not be "approached carpingly by engaging in a narrow analysis of each word in an attempt to find some latent ambiguity in it": (1989) 25 FCR 187 at 208. 33 Section 77C of the Bankruptcy Act 1966 (Cth) uses different language yet again. Section 77C(1)(b) permits a notice to be issued requiring a person to "produce all books in the person's possession relating to any matters connected with the performance of the functions of the Official Receiver or a trustee under this Act …". In respect to that provision it has been said that a "broad common sense approach" should be adopted. If the demand can be reasonably understood, the notice is valid: CK Nominees Australia Pty Ltd v Official Receiver (WA) [2007] FCAFC 118, 160 FCR 524. A statutory demand had there been issued under s 77C of the Bankruptcy Act 1966 and Moore J concluded: [39] The appellant made a subsidiary submission that the notice was not reasonably clear about what documents were required. The submission centred on the expression "associated entities" which is used in the definition of "examinable affairs" set out on the third page of the notice (containing extracts from the Act). The expression "associated entities" is defined in the Act (though that definition was not sent with the extracts) and the expression "private company" which is found in the definition of "associated entities" is a defined expression. In my opinion, the primary judge was correct in concluding that the Court should, when construing a notice of the type under consideration, take a "broad common sense approach", an expression which fairly synthesises the more detailed discussion of the Full Court in Pyneboard 57 FLR at 374-375; 39 ALR at 570-571. In construing the reference to "examinable affairs" and looking at the definition, including the expression "associated entities", a recipient could reasonably be expected to understand that the notice was seeking documents concerning the direct dealings of the bankrupt as well as documents concerning the financial affairs of associated entities. That term described with sufficient clarity and as an ordinary English expression what was comprehended by the more precise definition including the reference to private company. 34 Closer to the language of s 29 is s 30 of the Australian Securities and Investments Commission Act 2001 (Cth) which authorises the giving of a notice "requiring the production to a specified member or staff member, at a specified place and time, of specified books relating to affairs of the body". Section 33 is in like terms to s 30. But there again the last phrase confines the books to the affairs of the body to whom the notice is given. 35 The requirements imposed by s 29 of the Australian Crime Commission Act 2002 (Cth) that the matters there identified must be "specified" may well permit less room for imprecision in the identification of documents than that embraced by the Full Court (for example) in Pyneboard. The requirement that there be a "person specified in the notice" would thus not be satisfied if the notice required the documents to be produced to "an authorised officer" of the Commission - such a notice may "specify" a position, but no "person" would be "specified". A notice requiring production at "the Sydney office of the Commission" may similarly "specify" an office, but the "place" would remain unspecified. 36 The Macquarie Dictionary (4th ed, 2005) proffers the following definition of the word "specify": 1. to mentioned or name specifically or definitely; state in detail. 2. to give a specific character to. 3. to name or state as a condition. - verb (i). 4. to make a specific mention or statement. The accepted public importance of the functions entrusted to the Commission can be no reason to construe the power conferred by s 29 in any manner other than that which the words and the context naturally bear. Nor is there any reason to construe the term "specify" in s 29 in the phrase "a document or thing specified in the notice" in any different manner to the manner in which the same term is used elsewhere in that section. 37 Common to those other statutory provisions which authorise the issue of a notice requiring the production of information or documents, however, has been the concern of the Court to ensure that each of the statutory demands that may be authorised is construed in a practical and common sense manner. Notwithstanding the difference in language as between s 155 of the 1974 Act and s 264 of the 1936 Act, for example, a similar approach has been adopted when considering the degree of certainty required in a notice issued under s 264: McCormack v Commissioner of Taxation [2001] FCA 1700 at [50], 114 FCR 574 at 590 per Sackville J. Ambiguity may be discerned by those with initiative to find uncertainty where none really exists. But that is not the manner in which any of the notices have been construed in the decided cases. 38 The more obscure a category of "document or thing" may be, the greater may be the imperative for that "document or thing" to be described with a degree of specificity or definiteness so that the person upon whom a statutory notice is given may be capable of identifying that "document or thing" and thereafter producing it. 39 It may be necessary at some stage to give greater content to the constraints that are imposed by the use of the term "specify" in s 29. That term may well require a greater degree of precision in the identification of the "document or thing" required to be produced than has been found appropriate in other statutory contexts. That greater degree of precision emerges from the statutory language employed in s 29. And reason for greater specificity may also be required by the very generality of the power conferred by s 29 upon an examiner. There is no express requirement, for example, that a notice issued under s 29 identify on its face the particular ambit of the "special ACC operation/investigation" in respect to which the "document or thing" is considered to be "relevant". There is thus no requirement to identify anything as to the surrounding circumstances, however broadly they may be expressed, within which a person served with a notice can consider the factual or other context within which the power is being exercised. 40 Other statutory provisions stand in a different position. Section 264 of the 1936 Act, for example, is subject in the case of s 264(1)(b) to some constraint by reason of the notice being one "relating" to a person's income - there may thus be reason to at least query the validity of a notice requiring the production a document having no apparent relevance to any person's "income or assessment". When this power is sought to be exercised, attention has been directed to that information which must be conveyed to the person receiving the notice: Federal Commissioner of Taxation v Australia and New Zealand Banking Group Ltd (1979) 143 CLR 499. Mason J there observed at 537: It is not in dispute that a notice given under par. (1) (b) may validly require the production of something less than all the books, documents and other papers in the custody or control of the recipient relating to the income or assessment of the named person. It may, for example, specify particular documents. Such a notice, if correctly drawn, will make it clear that the requirement extends to the particular documents because they are included in the class of documents of which the Commissioner is authorized to require production. As the Commissioner's coercive power to require production is limited, any notice given in exercise of the power must in terms conform to the statutory limitations if it is to be valid. It will in my view conform to those limitations only if it clearly confines the documents to be produce to the class of which the Commissioner is authorised to require production, though it may go on to include particular documents on the footing that they fall within that class. If not so limited, the notice fails on its face to express the limitation which the section places on the Commissioner's authority … His Honour concluded at 539: …the demand for production must be so formulated that it expresses the limitation impose[d] by the section. After expressing the view that a notice issued under s 264(1)(b) must identify the documents required to be produced with "sufficient clarity", Gibbs ACJ continued at 525: However the notice must in my opinion go further: it must show the person to whom it is addressed that any document which he is required to produce is one whose production the Commissioner is entitled to require. Where a notice is addressed to a taxpayer who is required to produce documents which relate to his own income or assessment, the very description of the documents (for example, "your books of account") may be enough to show that the notice is within the power conferred by the section. Where however the notice is addressed to one person, requiring him to produce the documents of another, the notice must show that those documents relate to the income or assessment of a particular person, who must be identified. The power is confined to giving a requirement of a particular kind - a requirement to produce documents relating to the income or assessment of some person - and a notice requiring the production of documents not so related is beyond the scope of the power. See also: Jacobs J at 541 to 542; Murphy J at 547. See also: Hart v Commissioner of Taxation [2005] FCA 1748 at [95] to [97], 148 FCR 198 at 227 to 228 per Greenwood J. 41 Section 264(1)(a) is not so confined and permits what has been described as a "fishing expedition": Federal Commissioner of Taxation v Australia and New Zealand Banking Group Ltd (1979) 143 CLR 499 at 515 at 535 to 536 per Mason J. Section 264(1)(a) may only be confined by the need to ensure that that power is exercised for the broadly expressed purposes elsewhere set forth in the Income Tax Assessment Act 1936 (Cth): Industrial Equity Ltd v Deputy Commissioner of Taxation (1990) 170 CLR 649 at 659 to 660. A notice issued under s 264(1)(a) need not reveal on its face that the Commissioner is entitled to require the information specified in the notice; it is enough for the notice or the covering letter to record that the information is required for the purposes of the 1936 Act: McCormack v Commissioner of Taxation [2001] FCA 1700 at [46], 114 FCR 574 at 589 per Sackville J. But those purposes, no matter how broadly expressed, impose some constraint. 42 Section 155 of the 1974 Act is constrained by reference to the requirement that there be reason to believe that the documents sought relate to a matter that may constitute a contravention of the Act - again, the validity of a notice requiring the production of information apparently totally unrelated to any possible contravention of the 1974 Act may be at least questioned. And s 77C is confined (at least to some extent) by the reference to the documents relating to a matter connected with the performance of the functions of the Official Receiver or a trustee. 43 After referring to Pyneboard and other decisions of the Full Court of this Court, in Australian Securities Commission v Lucas (1992) 36 FCR 165. Drummond J summarised the position in respect to notices issued under s 155 as follows: … so far as form is concerned, a notice issued under s 155 of the Trade Practices Act to be valid must contain the following information: (a) it must disclose on its face sufficient information to identify the "matter" with respect to which the recipient of the notice is thought to be capable of giving information, evidence or producing documents; and (b) the notice must contain sufficient information to disclose the necessary relationship between the information or documents sought and the matter in respect of which that material is sought. This has been described as the "entitlement disclosure condition": S A Brewing Holdings Ltd v Baxt (1989) 23 FCR 357 at 370 per Fisher and French JJ. 44 But s 29 is not likewise constrained. The functions vested in the Commission by s 7A are so diverse that any field of personal or business activity may potentially fall within its reach. A person served with a notice under s 29 may not have any knowledge that any "special ACC operation/investigation" is being undertaken and may have even less knowledge as to either the information available to the Commission exposing his own involvement or participation in any such operation or investigation. There may be good reason to keep such information confidential to the Commission. Both those persons who are improperly pursuing an activity of legitimate concern to the Commission and those persons who are completely innocent may have "a document or thing" which could be relevant to the tasks entrusted to the Commission. A person upon whom a notice has been served may immediately realise or suspect why the Commission is requesting that the "document or thing" be produced; others may have no knowledge. But how or why a "document or thing" is required to be produced may not be able to be tested by reference to such other criteria as there is in other statutory contexts - for example, the document being a financial record potentially of relevance to income or the recovery of tax; or a corporate record potentially of relevance to a contravention of the Trade Practices Act. 45 Whatever may be the degree of knowledge of the person upon whom a notice under s 29 has been served, any notice must be construed according to its terms. The express legislative constraint imposed by s 29 which is invoked by the present Applicants is the requirement that the notice "specify" that which is required to be produced. 46 Further support for construing the term "specified" in s 29 as requiring a particular degree of detail, and perhaps a greater degree of particularity than is required in other statutory contexts, is provided by s 22 of the 2002 Act. That section authorises the issue of a search warrant. And s 22(2) provides as follows: Where an application under subsection (1) is made to an issuing officer, the issuing officer may issue a warrant authorizing a member of the Australian Federal Police or of the Police Force of a State, or any other person, named in the warrant, with such assistance as he or she thinks necessary and if necessary by force: (a) to enter upon the land or upon or into the premises, vessel, aircraft or vehicle; (b) to search the land, premises, vessel, aircraft or vehicle for things of the relevant kind; and (c) to seize any things of the relevant kind found upon the land or upon or in the premises, vessel, aircraft or vehicle and deliver things so seized to any person participating in the special ACC operation/investigation. Subsection (2) does not authorise the issue of a warrant confined to the seizure only of "specified things". The degree of detail required to be set forth in a warrant is that provided for in s 22(5) which provides as follows: A warrant issued under this section shall: (a) include a statement of the purpose for which the warrant is issued, which shall include a reference to the special ACC operation/investigation and with which the things of the relevant kind are connected; (b) state whether entry is authorized to be made at any time of the day or night or during specified hours of the day or night; (c) include a description of the kind of things authorized to be seized; and (d) specify a date, not being later than one month after the date of issue of the warrant, upon which the warrant ceases to have effect. Subsection 5(c) likewise does not employ the language of "specified" things. In that respect, s 22 may provide a greater degree of latitude in the language permitted to identify the things that may be seized. Perhaps in the case of a search warrant a greater confidence is reposed in those executing the warrant to seize only that which is authorised. A warrant once having been issued, it is thereafter those executing the warrant who make the decisions as to what they may lawfully seize. In the case of a notice issued pursuant to s 29 it was evidently considered appropriate by the legislature to impose upon the person served with such a notice less room for ambiguity and a greater degree of precision as to that which he was required to produce. But why a search warrant is required to contain a "statement of the purpose for which the warrant is issued" (s 22(5)(a)), and why there is no such like requirement in the case of a s 29 notice, was not explained by Counsel for the Commission. 47 The degree of care with which provisions such as s 22 have been drafted is obvious. At common law, for example, a police officer who was lawfully upon premises had a limited ability to seize that which he believed was evidence of a crime: Elias v Pasmore [1934] 2 KB 164. It was said that "the interests of the State must excuse the seizure of documents, which seizure would otherwise be unlawful, if it appears in fact that such documents were evidence of a crime committed by anyone": [1934] 2 KB at 173. Other decisions limited this power to seize to only those materials which implicated the occupier in the same offence as that for which an arrest was being made or the seizure of those documents which implicated some other person in the same offence as that for which a search warrant had been issued: Ghani v Jones [1970] 1 QB 693 at 706; Butler v Board of Trade [1971] Ch 680 at 691; G H Photography Pty Ltd v McGarrigle [1974] 2 NSWLR 635 at 644 to 645; Adamson v Noall [1967] VR 105 at 115. Whatever be the extent of the power conferred at common law, s 22(7) now confers the following power: Where, in the course of searching, in accordance with the terms of a warrant issued under this section, for things of the relevant kind, the person executing the warrant finds a thing that he or she believes on reasonable grounds to be evidence that would be admissible in the prosecution of a person for an offence against a law of the Commonwealth, of a State or of a Territory, and he or she believes on reasonable grounds that it is necessary to seize the thing in order to prevent its concealment, loss, mutilation or destruction, or its use in committing such an offence, the person may seize the thing and, if he or she does so, the thing shall be deemed, for the purposes of this Act, to have been seized pursuant to the warrant. The concern of those drafting the Act was to ensure that the power of the Commission and its officers was clear. That which will require clarification in the future are the rights of those against whom the power is invoked. 48 But the present proceedings, it is considered, do not require any detailed consideration to be given to how specific or definite a description has to be. 49 The present notice may suffer from limited ambiguity; but such ambiguity as there may be provides no basis for concluding that any of the notices are not authorised by the terms of s 29 by reason of the uncertainty asserted. None of the documents or categories of documents required to be produced pursuant to the notice are anything other than well recognised documents or categories of documents. The identification of documents by reference to their being "corporate records" or "financial statements" (for example) is readily capable of being given meaning. The use of terms such as "directly or indirectly" is equally as readily capable of being given an acceptably certain meaning. 50 It is also of some relevance that in communications and correspondence as between the Applicants and the Commission there was no prior assertion that there was any uncertainty on the part of the Applicants as to the documents required to be produced. Specificity in language may have regard to the knowledge of the person upon whom a notice is served: cf The Integrated Financial Group Pty Ltd v Australian Securities and Investments Commission [2004] WASCA 213, 187 FLR 7. The "clarity" of a notice served under s 264 of the 1936 Act, it has been said, "must be considered against the background of the knowledge and circumstances of the Respondent to the Notice and the contextual facts": Hart v Commissioner of Taxation [2005] FCA 1748 at [91], 148 FCR 198 at 226 per Greenwood J. A document may be specified if the description of the document required to be produced is sufficiently certain to identify it to the person upon whom a notice is served - even if that description may mean little (if anything) to a person without such knowledge. 51 The Applicants in the present proceedings, it is considered, are more intent on attempting to find uncertainty where - upon a reasonable and practical reading of the Schedules - none exists.

A Failure To Consider a Relevant Consideration 52 The contention that the examiner when issuing the notices failed to consider the relevance of the documents identified in the Schedules to each of the notices, and presumably also failed to consider the volume of the documents described, focussed upon the record "in writing [of] the reasons for the issue of the notice" as required by s 29(1A). 53 Those records were each in substantially similar terms. The form of the record was a single document which set forth the "Material Facts" as follows: MATERIAL FACTS I had regard to the following material for the purposes of being satisfied under subsection 29 (1A) of the Australian Crime Commission Act 2002 (Cth) (the Act) that it was reasonable in all the circumstances to issue the notice: (a) A statement of facts and circumstances dated 3 December 2008 (b) Legal submissions dated 3 December 2008 The form of the record thereafter continued to set forth the Schedule of documents required to be produced and concluded: Based upon my consideration of the statement of facts and circumstances and the legal submissions which are referred to above : (1) I was satisfied that the investigation/operation was within the terms of the Determination and that the Determination was still operative. (2) I was satisfied that it was reasonable in all the circumstances that the Notice be issued to the party to whom it is directed. (3) I was satisfied that it was reasonable in all the circumstances that the Notice be issued in the terms approved by me. (4) I was satisfied that this was an appropriate Notice for the inclusion of a notation pursuant to subsection 29A(1) of the Australian Crime Commission Act 2002 because if such a notation were not included it would reasonably be expected to prejudice the effectiveness of the operation or investigation and that a failure to do so might be contrary to the public interest. (5) I was satisfied that it was also appropriate that the notation pursuant to subsection 29A(1) of the Australian Crime Commission Act 2002 be in the terms approved by me. A call was made for the production of the "statement of facts and circumstances" and for the "legal submissions" referred to. It was considered that those documents were not of immediate relevance to the arguments sought to be advanced by the Applicants and, had it been necessary to resolve the issue, a claim for public interest immunity would in all likelihood have prevailed. 54 It was accepted by Counsel for the Commission that s 29(1A) is a provision to which s 25D of the Acts Interpretation Act 1901 (Cth) applies. It may thus be seriously doubted whether the reasons as provided by the examiner in the present proceedings comply with the requirement to record the reasons for the decisions taken. Even if that potential deficiency is left to one side, the reasons as provided bear some of the hallmarks of a lack of attention being given by the examiner to the task being undertaken and some of the hallmarks of a standard form of reasons employed in such other instances upon which the examiner may have been called upon to exercise the power conferred by s 29. There is, for instance, not only the unacceptable brevity of the reasons provided but there is also a lack of attention as to whether the examiner was conducting a "special operation" or a "special investigation". The notices record that a "special operation" was being undertaken - but the record of the reasons does not consider it appropriate to confine itself in a like manner. Those against whom the powers conferred by the 2002 Act are exercised are entitled to have confidence that the power is being lawfully invoked. 55 But those observations may be left to one side. The case for the Applicants is that such reasons as have been provided: (i) make no express reference to the "relevance" of the documents required to be produced to the "special operation" being undertaken; and (ii) make no express reference to the potential volume of documents required to be produced - that volume being emphasised by the extension of the notices to "all business units or subsidiary companies" and by the absence of any time constraint within which the "corporate records" are required to be produced. 56 The argument, however, must be rejected for either of two reasons, namely: (i) even if attention is confined to the reasons as provided by the examiner, it is not at all apparent that consideration was not given to the relevance of the documents required to be produced (and the potential large number of such documents) to the "special operation" being undertaken. It is difficult to conclude that the relevance of the documents required to be produced was not at the forefront of the examiner's mind when issuing the notice; and (ii) if there be any doubt, however, that doubt is resolved by recourse to the terms of the notices themselves. Each record on their face that the documents "are relevant to the said special operation". Reliance upon a third argument is rejected. This third argument sought to focus upon: (iii) s 29(5) which provides that failure to comply with s 29(1A) "does not affect the validity of a notice" issued under s 29(1). This subsection simply provides that a failure to comply with the requirement to record in writing the reasons for the issue of a notice does not affect the validity of the notice. The case for the Commission was that it had in fact complied with the requirement; the case of the Applicants was that, having complied with the requirement, the Applicants could then rely upon the reasons provided to expose what the examiner's reasons were and what he had - and had not - taken into account. Had the record of those reasons provided by the examiner disclosed a failure to take into account a consideration which the examiner was "bound" to take into account (Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 39 per Mason J), s 29(5) would not have protected that notice from invalidity. Section 29(5) may have protected the validity of the notice had the inadequacy in the record of reasons been put in issue - but it would not protect such reasons as were provided from scrutiny. The onus upon the Applicants to prove a failure to take into account the consideration identified has not been discharged. 57 Care, however, needs to be taken when considering the use to which reasons recorded for the purposes of s 29(1A) can be put. Care must be taken because Schedule 2(ea) to the Administrative Decisions (Judicial Review) Act 1977 (Cth) provides that the requirement to provide a statement of reasons imposed by s 13 of that Act does not apply to decisions of the Australian Crime Commission, including "decisions in connection with intelligence operations". Counsel for the Commission urged that the legislative intent to exclude an entitlement to reasons should not be circumvented by reliance upon the record of reasons imposed by s 29(1A). That requirement, it was contended, may have been imposed to enhance decision-making and to facilitate accountability to Parliament - but not the Courts: cf Barnes v Boulton [2004] FCA 1219, 139 FCR 356. There in issue was an asserted entitlement to be provided with the comparable record of reasons imposed by s 28(1A) of the 2002 Act before a person summonsed to give evidence was required to answer any questions. In rejecting that entitlement, Finn J concluded: [29] The legislative judgment not to provide a right to reasons can only be regarded as deliberate, the more so as the ACC Act contemplates that decisions under this Act may be the subject of an application under the ADJR Act: s 57; but the ADJR gives no right to reasons under s 13 for such decisions. The clear purpose of s 28(1A) is both to focus and enhance decision making and to provide an accountability mechanism by requiring the creation of an "audit trail". Under s 59 of the Act, that record is potentially available on request to the portfolio Minister and to the Parliamentary Joint Committee on the Australian Crime Commission that is constituted under Pt III of the ACC Act: and see ss 54 and 55 for that Committee's powers and duties. As is not uncommon with investigative agencies, the Parliament has counterbalanced the secrecy regime it has erected to ensure the effectiveness of the ACC's investigations with a measure of public accountability through a dedicated parliamentary oversight committee: see eg Intelligence Services Act 2001 (Cth). A right such as the applicant propounds would be an alien presence in such a statutory scheme. What was not in issue in those proceedings was whether or not a record of reasons could or should be made available to a court in circumstances where the decision to exercise a power such as s 28 or s 29 was the subject of an application for judicial review. Where an exercise of power is the subject of a legitimate challenge by way of judicial review, it would seem curious that an existing written account as to why that power was being exercised should not also be available to this Court. If any part or parts of that record attracted a claim for public interest immunity privilege, or any other privilege, that claim can be resolved - as it was in the present proceedings. But, again, that issue need not be resolved. 58 The records of reasons were in fact made available to this Court, albeit not the "statement of facts and circumstances" or the "legal submissions" to which they refer. Where the reasons of an examiner are available, it is considered that they should be carefully construed. Given the width of the powers conferred upon an examiner, a responsible exercise of those powers would require that the reasons disclose on their face that the examiner has given careful consideration to both the nature of the power being exercised and the circumstances of the case before him. 59 Although the reasons of the examiner in the present proceedings do not disclose the careful consideration of the facts and circumstances which is required, that deficiency is not sufficient in the present case to make out the argument now sought to be advanced by the Applicants.

Unreasonableness as to Time 60 The December 2008 notices required production within a little over a week; the January 2009 notices allowed some two weeks. 61 The reasonableness of the period of time within which production is required is to be determined objectively by the Court in the light of the surrounding circumstances: cf Deputy Commissioner of Taxation v Ganke [1975] 1 NSWLR 252 at 258. Nagle J there concluded: … the question for consideration by the Court is an objective one and does not depend on the subjective views of the Commissioner. To adopt a contrary view would give rise to such a Draconian situation as to demand the clearest and most explicit words in s 264, and this I do not find. See also: McVey v Commissioner of Pay-roll Tax (Vic) (1985) 85 ATC 4,131 at 4,137 per Kaye J. The objective surrounding circumstances would include the breadth of each particular notice and (perhaps) the need for a recipient to construe the terms of a notice; the classes of documents required to be produced; the apparent ability of the recipient to collate and thereafter produce the documents; the time of the year at which a notice is served and intervening disruption to business activities by reason of public or religious holidays; whether there has been a prior attempt to require the production of the same or similar documents; and the time in fact allowed. Some consideration could also be given to the amount of time an examiner thought appropriate; although that consideration would not be decisive. 62 The period of time permitted by each of the notices, the Applicants contend, is insufficient and unreasonable. Compliance is said to be oppressive. Any unreasonableness as to time, the Applicants contend, is only further compounded by not only the number of documents potentially within the scope of the notices but also by the uncertainty or ambiguity inherent within the notices. 63 Again some assistance may be gleaned from the manner in which s 155 of the Trade Practices Act 1974 (Cth) has been construed. A like argument to that now sought to be advanced was also advanced in Pyneboard. Northrop, Deane and Fisher JJ there observed at at 377 to 378: There remains to be considered the availability to the appellants of the grounds upon which they object to a particular requirement to produce documents, namely, that it is harsh, oppressive and unreasonable. The mere fact that compliance with a requirement to furnish information or to produce documents would be burdensome will not invalidate that requirement in a s 155 notice (see Melbourne Home of Ford v Trade Practices Commission (No 3) ((1980) 47 FLR 163); Riley McKay Pty Ltd v Bannerman ((1977) 31 FLR 129). Nor will objective harshness, unreasonableness or oppressiveness of a requirement in such a notice constitute an independent ground of invalidity. If invalidity by reference to these qualities is to be established, it must be by reference to the implied general limitation upon the power conferred by s 155(1) of the Act to which reference has already been made, namely, that it is a condition of a valid exercise of the power that it be used in good faith for the purpose for which it was conferred and with regard to the effect that the exercise of the power will have upon those affected thereby. It is only if the harshness, oppressiveness or unreasonableness of a requirement in a s 155 notice is, in all the circumstances, such as to warrant the conclusion that the requirement could not have been imposed in good faith or could only have been imposed to achieve a collateral purpose or without regard to the burden which it would impose upon the recipient, that harshness, oppressiveness or unreasonableness will result in invalidity. 64 A similar observation has been made in respect to s 264: F H Faulding & Co Ltd v Commissioner of Taxation (1994) 54 FCR 75. Cooper J there observed at 126: The fact that compliance with the notice will be onerous or in the end result may be impossible and thereby expose the taxpayer to a sanction, will not of itself impose any limitation on the use of the power. 65 Considerable reservation may be expressed as to whether a notice would be authorised by s 29 if it was deliberately drafted with such a breadth of language and such a short period of time permitted for compliance that it was either known or suspected by the examiner to be impossible of compliance. There may be circumstances in which a large number of documents may be required within a comparatively short period of time. Time may not be a luxury that those administering the 2002 Act may, in some circumstances, possess. But where a large number of documents are sought within a short period of time and where allowing greater time is possible, the specification of an arbitrarily short time for compliance may reflect upon the reasonableness of the exercise of the power or the good faith with which it has been exercised. 66 In the present proceedings, there is a need to differentiate the December 2008 notices and the later ones issued in January 2009. On the face of the December 2008 notices, there is little (if any) reason to question the limited amount of time provided for compliance. The task may have been potentially onerous, but the time for compliance does not otherwise appear unreasonable. 67 By the time of the issue of the 16 January 2009 notices, three things had relevantly occurred, namely: (i) there had been produced at least some of the documents the subject of the earlier notices; (ii) the terms of the earlier notices had been confined; and (iii) contact had been made between officers of the Commission and the Applicants. Prior to 16 January 2009, an officer of the Commission had been told in respect to the former notices that "it is going to be impossible to get all that information together now before Christmas …". In a separate conversation in late December 2008, the same officer of the Commission had been told that "it is an extremely difficult and busy time of the year for us …". Significantly, however, a letter forwarded on 16 December 2008 to the Commission addressed the time permitted in the notices issued on that date and stated in part: Please note that the information sought cannot be collated and provided within the time allowed under the notice (namely at 10am Wednesday 17 December 2008). We further note that there are matters in the notice which seek information that we do not have readily available or in our possession. There are also some doubts as to whether some of the information sought can be provided or disclosed to you. We would therefore ask for a further 28 days with which to comply with the Notice. The estimate provided by the Applicants to the Commission as to the amount of time required to comply with the notice and produce the documents identified was "a further 28 days". Christmas, of course, intervened. 68 During the course of conversations between the General Counsel of A.B. Pty Limited and the officer of the Commission when the difficulties of compliance were being raised by the General Counsel, the officer of the Commission stated that: "… I will have you charged for failing to comply with the Notice" and further stated that: "It should take you 5 minutes to print the information in 1 and 2 off your system. I want that information provided no later than tomorrow." Counsel for the Commission accepted that the officer had no authority to make either the threat or the demand. Those administering the Australian Crime Commission Act 2002 (Cth) are wielding power conferred in wide terms by the legislature. It is of importance that they do not assume even greater power than they already have. They already have enough power. 69 Upon the basis of the information available to the Commission as at the date upon which it issued its later notices, and based upon the assessment as to the time required in mid-December 2008, there is no reason to question the reasonableness of the time provided for compliance in the January 2009 notices. Fewer documents were later required to be produced than were first sought. Time has in any event been further extended to 4 pm on 20 February 2009. 70 There is no unreasonableness as to the time for compliance for any of the notices.

Conclusions 71 The Australian Crime Commission Act 2002 (Cth) confers functions and powers of fundamental importance upon the Commission. But it forever remains of importance that such powers as are conferred are exercised according to their terms and that Courts are vigilant to ensure that such powers are not exceeded. Perhaps to an ever greater extent than in other areas of legislative attention (eg Australian Securities Commission v Lucas (1992) 36 FCR 165 at 174), it is important to ensure that the purposes for which such powers as s 29 have been conferred are not frustrated by unmeritorious applications for judicial review. 72 Although there are differences between each of the statutory provisions authorising a notice requiring the production of documents, s 29 of the present Act is to be construed as conferring upon an examiner "an effective, but not an oppressive, or unfair, power of investigation". 73 It is sufficient for present purposes to reject each of the arguments advanced on behalf of the Applicants. The exercises of the power conferred by s 29 are not vitiated by reason of either uncertainty in the terms with which each notice is expressed, any failure to consider a relevant consideration or by reason of any asserted unreasonableness as to the time within which production was required. The ambit of the power conferred by s 29, the many features peculiar to the present statutory context and the differences in terminology as between s 29 and other statutory provisions serve as reminders to construe s 29 according to its terms. So construed, in the present proceedings, each of the decisions taken have been authorised by its terms. 74 The hearing of these proceedings took place on Tuesday 17 February 2009. The time for compliance with the January 2009 notices had previously been extended to 10 am on 18 February 2009. Time for compliance to accommodate the delivery of judgment today was further extended during the hearing to 4 pm on Friday 20 February 2009.

ORDERS 75 In proceeding NSD 2011 of 2008, the Court orders that: 1. The time within which the Application for an Order of Review is to be filed is extended to 24 December 2008. 2. The Amended Application for an Order of Review as filed on 23 January 2009 is dismissed. 3. The Applicant is to pay the costs of the Respondents.

76 In proceeding NSD 2013 of 2008, the Court orders that: 1. The time within which the Application for an Order of Review is to be filed is extended to 24 December 2008. 2. The Amended Application for an Order of Review as filed on 23 January 2009 is dismissed. 3. The Applicant is to pay the costs of the Respondents. I certify that the preceding seventy-six (76) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick.

Associate: Dated: 19 February 2009 In proceeding NSD 2011 of 2008: Counsel for the Applicant: Mr A Canceri

Counsel for the Respondents: Ms S T Chrysanthou, on 17 February 2009 Ms S J Maharaj QC, on 19 February 2009

Solicitor for the Respondents: Ms M E Hickton (Australian Crime Commission)

In proceeding NSD 2013 of 2008: Counsel for the Applicant: Mr A Canceri

Counsel for the Respondents: Ms S T Chrysanthou, on 17 February 2009 Ms S J Maharaj QC, on 19 February 2009

Solicitor for the Respondents: Ms M E Hickton (Australian Crime Commission)