(c) section 29A, in so far as that section relates to a summons under subsection (1) of this section.
174 The applicants submitted that:
(a) In the present case, the examiners could not and should not have been satisfied that it was reasonable to issue the summonses which are challenged; and
(b) The reasons documents relied upon as conforming to the statutory requirements specified in s 28(1A) are not documents which record reasons for the issue of the summons.
175 In support of these contentions, the applicants relied upon Australian Crime Commission v NTD 8 (2009) 177 FCR 263. In that case, the Full Court criticised a reasons document expressed in terms similar to those in the present case as appearing to be formulaic (at [23] (p 268)). But in that case, the statement of facts and circumstances and the legal submissions were both tendered in evidence and carefully considered and reviewed by the Court. The examiner also gave evidence. The decision in NTD8 177 FCR 263 turned on issues which do not arise in the present case. Further, the ground of attack being advanced by the applicants in the present case was not considered in NTD8 177 FCR 263. What is clear, however, from NTD8 177 FCR 263 is that, in considering the adequacy of the reasons which an examiner gives under s 28(1A) of the Act, the Court is entitled to look at the reasons document and any documents specifically incorporated into that document. The Court may even be entitled to have regard to evidence given by the Examiner which supplements the written reasons, although this proposition is doubtful, in my view. This point was not finally decided by the Full Court in NTD8 177 FCR 263.
176 Here, as in NTD8 177 FCR 263, in the reasons documents, all of the examiners expressly referred to a statement of facts and circumstances and legal submissions as containing the material which each of them used to form the requisite satisfaction under s 28(1A). Each of the examiners appears to have relied upon the same statement of facts and circumstances and the same legal submissions.
177 The reasons document, on its face, does not set out "… the reasons for the issue of the summons". It refers to other documents and then records a number of matters of which, apparently, the examiner in each case was satisfied.
178 But that is not the end of the matter. The statement of facts and circumstances and legal submissions must also be considered in order to come to a view as to whether or not the reasons document truly does meet the requirements of s 28(1A). Those documents are not in evidence. It is likely that they are highly relevant to the determination of the present question. In the absence of those documents, I am not prepared to find that the reasons documents (which include the statement of facts and circumstances and the legal submissions) do not adequately record the examiner's reasons for the issue of the summonses. The present case may be contrasted with GG 182 FCR 513 where the incorporated documents were tendered in evidence and taken into account in relation to an allegation made in that case that the reasons document was not a document which conformed to the requirements of s 29(1A). At [39], the Full Court also held that, on the evidence before the Court in that case, the examiner had fundamentally misunderstood the statutory basis of authority which he had for the issue of the summons.
179 For the same reasons that I am not prepared to hold that the examiners did not adequately record their reasons for issuing the summonses in question, I am also not prepared to conclude that the examiners were not satisfied that it was reasonable to issue the summonses which each of them issued. In any event, there is simply no evidence to support this assertion.
180 The applicants also submitted that the examiners were required to set out their findings on material questions of fact and refer to the evidence or other material on which those findings were based. These obligations were said to be imposed upon each examiner because he was a decision-maker who was required to give (my emphasis) written reasons for his decision and was therefore subject to the requirements of s 25D of the Interpretation Act.
181 In C Inc v Australian Crime Commission (2010) 113 ALD 226, the Full Court held (at [90] and [96]) that the obligation to record (my emphasis) reasons for the issue of a notice under s 29(1A) of the Act was not an obligation to give reasons within the meaning of s 25D of the Interpretation Act.
182 In the same case, at [89], the Full Court said:
89 We agree that the sufficiency of the Statement of Reasons was open to criticism. The appellant was correct to draw attention to what counsel described as the 'formulaic approach' of the reasons and to the importance of observing the requirements of s 29(1A). As Flick J observed in AB Pty Ltd v Australian Crime Commission (2009) 175 FCR 296 (AB) at [54], an observation that was endorsed by this Court in NTD8 at [73], "[t]hose against whom the powers conferred by the 2002 Act are exercised are entitled to have confidence that the power is being lawfully invoked". In NTD8, as here, the Statement of Reasons, the Statement of Facts and Circumstances and the Legal Submissions in Support were formulaic and uninformative and did not focus attention on the specific considerations to which the Examiner had regard. Again they seem to bear the hallmarks of a standard form document (see the observations of this Court in NTD8 at [34]; Flick J in AB at [54] and Besanko J in GG v Australian Crime Commission [2009] FCA 759 at [51]). However, deficiencies of this nature will not necessarily invalidate a notice: see, for example, AB at [59] per Flick J and SS v ACC [2009] FCA 580 at [97] per Jagot J.
And at [96], the Court said:
96 As to the purpose of the reasons, the appellant's essential point was that although the legislation does not provide specifically for a right to reasons for the decision, such a right should be implied by reason of the existence of the right to judicial review of the decision, the terms of s 29(1A) itself, and the requirements of s 25D of the Acts Interpretation Act. The submission that the ACC was under an obligation to serve a statement of reasons must fail. There is no room for the suggested implication, especially since, as we have held, s 25D of the Acts Interpretation Act does not apply to s 29(1A) of the Act (see above at [90]) and since the obligation is to record, rather than give, reasons. The better view is that expressed by Finn J in Barnes v Boulton (2004) 139 FCR 356 at [29] in relation to the analogous provisions of s 28(1A) that the omission of any express obligation to give, or any right to receive, reasons should be seen as deliberate. We see no basis for distinguishing Barnes v Boulton, by reference to the quite different situation considered by Smith J in Australian Crime Commission v Magistrates Court (Vic) (2007) 173 A Crim R 572 where the matter in issue was a subpoena. Finally, it cannot be that the right to judicial review - at least insofar as the right is founded upon the provisions of the ADJR Act - founds an implied obligation to serve written reasons in circumstances where decisions of the ACC in relation to intelligence operations are expressly exempted from the requirement to give reasons under s 13 of the ADJR Act (see s 13(11)(c) and Schedule 2 of the ADJR Act).
183 These observations are apt to be applied to s 28(1A).
184 In C Inc 113 ALD 226, at [91], the Full Court held that s 29(5) would have saved the s 29(1A) notice from invalidity even if the reasons had been inadequate. That reasoning is apt to be applied in respect of s 28(8) for the purposes of the present case.
185 The applicants submitted that the amendments made to s 28 in 2007 which inserted subsection (8) into that section were directed at curing one ill and one ill only, namely, the failure of the examiner to record his or her reasons before issuing the summons.
186 In light of the observations made by the Full Court in C Inc 113 ALD 226 at [91], that submission must be rejected.
187 In any event, I think that subsection 28(8)(a) cannot be so confined. The language of the subsection is clear and operates to defeat any complaint based upon the alleged failure of the examiners in this case to make the necessary record. The Act has recently been amended by the Crimes Legislation Amendment (Serious and Organised Crime) Act (No 2) (No 4 of 2010). Included within the amendments effected by that Act are amendments to s 28. Those amendments commenced on 20 February 2010 and thus do not apply in the present case.