B v Australian Crime Commission

JUDGE: BESANKO J DATE OF ORDER: 8 SEPTEMBER 2011 WHERE MADE: ADELAIDE

1. The application be dismissed.
2. The applicant pay the respondents' costs of the application. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011

IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION SAD 14 of 2011

JUDGE: BESANKO J DATE: 8 SEPTEMBER 2011 PLACE: ADELAIDE

Introduction 1 The applicant in this proceeding has issued an application under s 39B of the Judiciary Act 1901 (Cth) and under ss 5 and 6 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ('ADJR Act') claiming declarations and injunctions in relation to decisions and conduct undertaken by the first respondent, the Australian Crime Commission, and the second respondent, Mr Jeffrey Philip Anderson. The second respondent is an examiner under the Australian Crime Commission Act 2002 (Cth) ('the Commonwealth Act') and within the provisions of the Australian Crime Commission (South Australia) Act 2004 (SA) ('the State Act'). 2 On 10 June 2009 the Board of the Commission made an instrument by resolution entitled 'Australian Crime Commission - State Special Investigation Consent and Determination (High Risk Crime Groups - South Australia) 2009'. The instrument recorded or effected two acts by the Board. First, the Board consented to an investigation of a matter relating to activity that, under the State Act is relevant criminal activity. That consent was given under s 55A(3) of the Commonwealth Act which provides as follows: (3) The ACC cannot, under a law of a State: (a) investigate a matter relating to a relevant criminal activity; or (b) undertake an intelligence operation; unless the Board has consented to the ACC doing so. 3 There is a definition of 'relevant criminal activity' in s 4 of the Commonwealth Act and that definition refers to 'serious and organised crime' which is a term or expression defined in s 4 of the Commonwealth Act and in s 3 of the State Act. 4 Secondly, the Board made the determination set out in the instrument 'in relation to that relevant criminal activity, acting under the South Australian Act, by virtue of s 55A(4) of the Commonwealth Act'. Section 55A(4) of the Commonwealth Act provides as follows: (4) A law of a State may confer on the Inter Governmental Committee, the Board, the Chair of the Board, a member of the Board, the CEO, an examiner or a member of the staff of the ACC a duty, function or power that: (a) relates to the investigation of a matter relating to a relevant criminal activity in so far as the relevant crime is, or the relevant crimes are or include, an offence or offences against a law of the State (irrespective of whether that offence or those offences have a federal aspect); and (b) is either: (i) of the same kind as a duty, function or power conferred on the Inter Governmental Committee, the Board, the Chair of the Board, a member of the Board, the CEO, an examiner or a member of the staff of the ACC by this Act or any other Act (whether or not the last mentioned duty, function or power relates to the investigation of that matter); or (ii) of a kind specified in regulations made for the purposes of this subparagraph. 5 The section of the State Act under which the Board of the Commission acted in making the Determination was s 8, which, so far as relevant, is in the following terms: (1) The Board has the following functions: (a) to determine, in writing, whether an ACC State intelligence operation is a special operation or whether an ACC State investigation is a special investigation; (b) to determine, in writing, the class or classes of persons to participate in an ACC State intelligence operation or ACC State investigation; (c) to establish task forces; (d) such other functions as are conferred on the Board by other provisions of this Act. … (3) The Board may determine, in writing, that an ACC State investigation is a special investigation. Before doing so, it must consider whether ordinary police methods of investigation into the matters are likely to be effective. (4) A determination under subsection (2) or (3) must - (a) describe the general nature of the circumstances or allegations constituting the relevant criminal activity to which the operation or investigation relates; and (b) state that the serious and organised crime is, or the serious and organised crimes are or include, an offence or offences against a law of the State but need not specify the particular offence or offences; and (c) set out the purpose of the operation or investigation. 6 Although the Australian Crime Commission - State Special Investigation Consent and Determination (High Risk Crime Groups - South Australia) 2009 had the dual function I have described, it is the determination part of it which is important in this case and I will refer to it simply as the Determination. 7 The Determination consists of nine clauses and two schedules. The various clauses address aspects of s 8 of the State Act. For example, clause 5 addresses subsection 8(3) and clause 9 addresses paragraph 8(4)(c). 8 Clause 6(b) of the Determination provides as follows: (b) Pursuant to subsection 55A(5A) of the Commonwealth Act, the Board consents to the performance of a duty or function, and the exercise of a power, of a kind described in subsection 55A(5) of the Commonwealth Act: (i) presently conferred; or (ii) from time to time conferred; on the CEO or examiners of the ACC by a law of the State of South Australia, including the South Australian Act, in relation to the State special investigation, and this consent shall continue through the currency of the State special investigation. 9 Section 55A(5A) of the Commonwealth Act provides as follows: (5A) The CEO or an examiner cannot perform a duty or function, or exercise a power, under a law of a State: (a) relating to the investigation of a matter relating to a relevant criminal activity; or (b) relating to the undertaking of an intelligence operation; unless the Board has consented to the CEO or the examiner doing so. 10 Of particular importance in this case is the provision in the Determination linked to paragraphs 8(1)(b) and 8(4)(a) of the State Act. 11 As to the former, the Determination provides as follows: 7. Classes of persons to participate in investigation Pursuant to paragraph 8(1)(b) of the South Australian Act, the classes of persons to participate in the State special investigation are those mentioned in Schedule 2. … Schedule 2 Classes of persons 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 operations and investigations under the Commonwealth Act. 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) the Australian Taxation Office; (iii) AUSTRAC; (iv) the Department of Immigration and Citizenship; (v) the New South Wales Crime Commission; (vi) the Queensland Crime and Misconduct Commission; (vii) the Australian Defence Force; (viii) the Department of Defence; (ix) the South Australian Department of Fisheries and Wildlife; and (b) identified in writing by the head of that agency, or a delegate of the head, as a person whose duties include providing services in relation to operations and investigations under the Commonwealth Act. 12 Examiners are not included in the list in Schedule 2 and this is a ground upon which the applicant challenges the summons issued by the second respondent. 13 As to paragraph 8(4)(a), Schedule 1 of the Determination which is entitled 'Authorised investigation' is in the following terms: 1. Investigation An investigation to determine whether, in accordance with the allegations mentioned in clauses 3 and 4 and in the circumstances mentioned in clause 2, relevant criminal activity: (a) was committed before the commencement of this instrument; or (b) was in the process of being committed on the commencement of this instrument; or (c) may in future be committed. 2. Circumstances The general nature of the circumstances constituting relevant criminal activity that may have been, may be, or may in future be, occurring are those implied from information available to Australian law enforcement agencies indicating that:- (a) High Risk Crime Groups are involved in a range of serious and organised crime activity in and impacting on South Australia, including: illegal drug dealings; fraud; corruption and bribery of officials; perverting the course of justice; murder, kidnapping and other offences involving violence; extortion and blackmail; obtaining financial benefit by vice engaged in by others; theft; firearms offences; and money laundering; (b) they tend to be sophisticated, resilient, flexible, use key facilitators and operate across multi-jurisdictional illicit commodity markets; (c) they may generate profits through their commission of serious frauds and deceptions as a means of enabling their primary criminal activities; and (d) effective targeting of these groups requires a multi-agency intelligence-driven approach at a national level with access to coercive powers. 3. Allegations The general nature of the allegations constituting relevant criminal activity that may have been, may be, or may in future be, committed is that certain persons, in concert with one another or with other persons, may be engaged in 1 or more of the following activities: (a) murder; (b) kidnapping; (c) blackmail, extortion, and unlawful threats; (d) other offences involving violence; (e) obtaining financial benefit by vice engaged in by others; (f) illegal drug dealings; (g) firearm offences; (h) bribery or corruption of public officers or abuse of public office; (i) theft; (j) deception and dishonest dealing with documents; (k) money laundering; (l) offences relating to judicial proceedings contrary to Part 7, Division 3 of the Criminal Law Consolidation Act 1935 (SA); (m) such other incidental offences that the head of the special investigation authorised by this instrument suspects may be directly or indirectly connected with, or may be a part of, a course of activity involving the commission of any of the offences mentioned in paragraphs (a) to (l). 14 Clause 1 in Schedule 1 refers to a clause 4, but there is no clause 4 in the Determination. This is a ground upon which the applicant challenges the Determination. 15 The period of the authorisation referred to in the Determination was extended to 30 June 2011 by Australian Crime Commission - State Special Investigation Consent and Determination (High Risk Crime Groups - South Australia) Amendment No 1 of 2010. Nothing in this case turns on the amendment. 16 The applicant was served with a summons and schedule requiring the production of documents under s 19 of the State Act ('Summons'). Annexed to the summons and schedule were the Board's Determination and the Amendment, a written statement of the type referred to in s 21(3) of the State Act and a set of explanatory notes. 17 The applicant advances three arguments in support of his challenge to either the Determination, the Summons or the conduct of the examination. Those arguments are as follows. First, he submits that the Determination is incomplete and its scope is uncertain because in clause 1 of Schedule 1 there is a reference to the allegations mentioned in clauses 3 and 4 and yet there is no clause 4. The Determination is therefore invalid and if it is invalid so is the Summons. Secondly, he submits that the Summons is invalid because the second respondent had no authority to issue it. He had no authority because he was not identified in Schedule 2 of the Determination in the class or classes of persons 'to participate in an … ACC State investigation' as required by paragraph 8(1)(b) of the State Act. Thirdly, he submits that his examination should be restricted because there are criminal proceedings pending against him and the second respondent intends to ask him questions about matters which are the subject of those charges. The applicant submits that he should be restrained from doing so.

The Validity of the Determination 18 The applicant submits that the Determination is invalid because it does not describe 'the general nature of the circumstances or allegations constituting the relevant criminal activity to which the … investigation relates' as required by paragraph 8(4)(a) of the State Act. The applicant submits that this requirement goes to the validity of the Determination and a failure to meet it means that the Determination is invalid. 19 The requirement in paragraph 8(4)(a) is expressed in mandatory terms, that is, a determination 'must' describe 'the general nature of the circumstances or allegations constituting the relevant criminal activity to which the … investigation relates'. Furthermore, the significance of a proper delineation of the ACC operation or investigation is made clear by other sections in the Act: s 17 (power of examiner to conduct examination), subsection 18(6) (scope of questions at an examination); subsection 19(8) (power to summon witnesses and take evidence; s 23 (failure of witnesses to attend and answer questions). In addition, by reason of subsection 19(3) a summons under subsection 19(1) must be accompanied by a copy of the determination of the Board that, relevantly, the State ACC investigation is a special investigation. Therefore, the proposed examinee has a right to receive a copy of the determination including all that it must contain by reason of s 8. That will provide the proposed examinee with some notice about the proposed examination. 20 In P v Board of the ACC (2006) 151 FCR 114 the Full Court of this Court addressed subsections 7C(1)(d) and (3) of the Commonwealth Act. Subsections 8(1)(a) and (3) are the equivalent subsections in the State Act. The Full Court said (at 122 [29]): The requirements for writing in s 7C(1)(d) and (3) serve another purpose. Pursuant to s 28(2), a summons requiring a person to appear for examination must be accompanied by a copy of the relevant determination pursuant to s 7C(3). Section 7C(4) provides that such a determination is to identify the general nature of the circumstances or allegations constituting the relevant criminal activity, the federal nature of the investigation and its purpose. The purpose of serving a copy of the determination with the summons is to demonstrate to the person summoned: • the authority by which the summons has been issued; and • the nature of the subject matter with respect to which he or she is to be examined. 21 There is no reason to think that the observations in this passage do not apply with equal force in the case of the State Act. 22 It seems to me that the requirement in paragraph 8(4)(a) is such that if it is not met then a determination is invalid (Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355). So much appears to have been conceded by the Commission in P v Board of the ACC (at 121 [26]) and I do not think seriously disputed by the Commission in this case. 23 In the course of submissions counsel for the respondents referred to s 16 in the Commonwealth Act and counsel for the applicant referred to the equivalent section in the State Act, that is, s 36. The submissions were not detailed and on the face of it neither of those sections apply in this case. Section 16 is limited to 'federally relevant criminal activity' and s 36 is limited to a challenge 'in any court of the State'. In any event, the respondents accept that s 16 does not protect a jurisdictional error (Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476) and in view of my conclusion that the requirement in paragraph 8(4)(a) goes to jurisdiction, the precise scope of s 16 or its equivalent in the State Act is not material to the outcome of the applicant's challenge. In other words, while those sections might preclude review for mere error of law, they do not preclude review for jurisdictional error. 24 Having decided that the requirement in paragraph 8(4)(a) of the State Act goes to jurisdiction, the next question is what is required by paragraph 8(4)(a). The respondents refer to the use of the disjunctive 'or' in the phrase 'the general nature of the circumstances or allegations' and submit that as there was no uncertainty about the 'circumstances' described in the Determination any uncertainty (assuming for present purposes there was uncertainty) in the description of the 'allegations' was immaterial. In other words, the respondents submit that a determination must describe the general nature of the circumstances constituting the relevant criminal activity or the general nature of the allegations constituting the relevant criminal activity, but need not describe both. If as here the general nature of the circumstances constituting the relevant criminal activity are described adequately the fact that there was not an adequate description of the general nature of the allegations constituting the relevant criminal activity does not affect validity. There is force in this submission. I do not see why in every case the Board must deal separately with circumstances and allegations. If it chose to deal with only one then I do not think it would be acting in breach of paragraph 8(4)(a). The difficulty here is that the Board has chosen to describe both and as they overlap in terms of content it is arguable that an incomplete description of one affects the overall description. As I have reached the conclusion that there has been no breach of the paragraph for the reason which follows I do not need to decide this point. 25 The applicant referred me to various common law cases which discussed uncertainty as a ground for judicial review. In particular I was referred to Ballarat Broadcasters Pty Ltd v Australian Broadcasting Tribunal (unreported, Davies J, 16 September 1988), Television Corporation Ltd v The Commonwealth of Australia (1963) 109 CLR 59 at 71 per Kitto J and Hitchener v Ham [1961] VR 97 at 103-104 per Sholl J. There are of course a number of other cases (see, for example, the authorities referred to in Aronson M, Dyer B and Groves M, Judicial Review of Administrative Action (3rd ed, Thomson Lawbook Co, 2004) at 331-334). The applicant also referred to cases in which a Court has had to consider whether to read words into or out of a statutory provision or piece of delegated legislation. In particular, I was referred to Wentworth Securities Ltd v Jones [1980] AC 74; Taylor v Centennial Newstan Pty Ltd (2009) 76 NSWLR 379 and Minister for Immigration and Citizenship v SZJGV (2009) 238 CLR 642. 26 The applicant also referred to the provisions of the ADJR Act which provide that uncertainty is a ground of review in relation to decisions (subsections 5(1)(c) and 5(2)(h)) and conduct (subsections 6(1)(e) and 6(2)(h)). 27 There was passing reference in submissions to the question of whether the Determination was a legislative or executive instrument. It may be that this is not an issue of any real significance (Parks Holdings Pty Ltd v Chief Executive Officer of Customs (2004) 81 ALD 365 at 385-386 per Goldberg J) and in any event I am satisfied that if the reference to 'and clause 4' is a mere slip then I can ignore it. 28 The first task for the Court is to construe the relevant provisions of the Determination. If the Court is unable to construe the provision so that it has a clear meaning or a clear operation then consideration must be given to the doctrine of uncertainty either at common law or under the ADJR Act. That point is not reached in this case because I have reached the conclusion that the reference 'and 4' is a mere slip and that there is not even a realistic possibility that there was a clause 4. 29 The applicant's submission is that it is not clear whether there was a clause 4 but it was not included in the determination in writing as required by subsections 8(3) and (4) or was not in the copy of the determination which accompanied the summons as required by subsection 19(3) or that there was never a clause 4. I think it is sufficiently clear that there was never a clause 4 for two reasons. First, the wording of each of clauses 2 and 3 follows closely the wording of paragraph 8(4)(a) of the State Act and there is no reason to think that they are not an exhaustive statement of the general nature of the circumstances or allegations constituting the relevant criminal activity. Clause 3 is very general and embodies an approach of describing the general nature of the allegations simply by listing a number of offences. The list of offences is extensive and, having regard to the terms of paragraph (m), on the face of it complete. The offences listed in clause 3 bear a close resemblance to those identified in clause 2. There is simply no reason to think, as the applicant postulated, that there might be a clause 4 which limited clause 3 to a particular time, a particular location, particular groups or particular methods or techniques. Secondly, if consideration is given to clauses 2 and 3 together one can see an attempt to cover the matters identified in the definition of 'serious and organised crime' in section 3 of the State Act. It is true that the approach taken in the Determination is a very general one but there is simply no reason to think that anything has been left out. 30 The applicant's first ground of challenge must be rejected.

The Validity of the Summons 31 The applicant's second ground of challenge relates to the Summons issued by the second respondent under s 19 of the State Act rather than the Determination. It was that the second respondent, or the class of which he was a member, that is, examiners, were not named as persons to participate in the ACC State special investigation in Schedule 2 of the Determination. The fact that neither the second respondent nor the class of examiners is referred to in Schedule 2 means, so the applicant's argument runs, that no examiner including the second respondent is entitled to participate in the ACC State special investigation by, among other things, issuing a summons under s 19 of the State Act. 32 The respondents' first submission is that paragraph 8(1)(b) of the State Act does no more than identify a function of the Board and that it is not mandatory for the Board to determine, in writing, the class or classes of persons to participate in an ACC State investigation. Although there is good reason to think that it is a mandatory requirement (D v Australian Crime Commission (2006) 152 FCR 497 at 507-508 [53]-[54]) I do not need to decide the point because I am satisfied that examiners may exercise their powers under the State Act even though not identified in a determination. 33 The word, 'examiner' is not defined in the State Act. The Act provides in subsection 3(2) that a term in the State Act has the same meaning as it has in the Commonwealth Act, unless the contrary intention appears in the Act. There is no suggestion of a contrary intention and 'examiner' is defined in s 4 of the Commonwealth Act to mean a person appointed under subsection 46B(1). Section 46B provides as follows: (1) An examiner is to be appointed by the Governor General by written instrument. Consulting the Inter Governmental Committee (2) Before the Governor General makes such an appointment, the Minister must consult the members of the Inter-Governmental Committee in relation to the appointment. Legal practitioner (3) A person must not be appointed as an examiner unless he or she is enrolled as a legal practitioner, and has been so for at least 5 years. Period of appointment (4) An examiner holds office for the period specified in the instrument of appointment. The period must not exceed 5 years. Note: An examiner is eligible for reappointment: see the Acts Interpretation Act 1901. Basis of appointment (5) An examiner may be appointed on a full time basis or on a part time basis. 34 There are other quite extensive provisions dealing with examiners in Part II Division 3 Subdivision B of the Commonwealth Act. It is clear that they stand in quite a different position from the staff of the Commission or of organisations referred to in subsection 7B(2) of the Commonwealth Act. The CEO of the Commission is to consult with them before making arrangements as to the examiner who is to be able to exercise his or her powers under the Act in relation to a special ACC operation/investigation (subsection 46A(3)). There is a similar provision in the State Act (subsection 6(4)). 35 The examiner is guaranteed a level of independence consistent with his or her position and is in a different position from other groups such as those identified in Schedule 2 clause 3 of the Determination in this case. 36 In a broad sense an examiner participates in an ACC State special investigation but I would read paragraph 8(1)(b) of the State Act more narrowly and as being limited to staff of the Commission and officers or members of organisations like those identified in s 7B(2) of the Commonwealth Act or those identified in the Determination in this case. The powers of an examiner are identified in the State Act and conferred by that Act and they depend on there being a special ACC operation/investigation. 37 I should mention that I have not found reference to the use of the word 'participating' in other sections of the Act, for example, subsection 29(2), (1) and (11), of assistance in resolving the issue of construction. 38 The applicant's second ground of challenge must be rejected.

The Conduct of the Examination 39 The applicant presently faces a number of criminal charges which are being prosecuted in the criminal courts in South Australia. A redacted copy of the informations and complaint were tendered and became exhibit P2. 40 The Summons contains a notation that no information from the examination will be published to the SA Director of Public Prosecutions or to any person involved with the investigation or prosecution of the charges. At the same time the respondents admit in their Defence that the examiner intends to question the applicant about matters which are relevant to the charges. 41 The applicant submits that to be questioned by an examiner about matters relevant to those charges would be a contempt of court and the examiner should be restrained from doing so. However, he acknowledges that the decision of the Full Court of this Court in Australian Crime Commission v OK (2010) 185 FCR 258 ('OK') stands in the way of an acceptance of that submission and that I am bound to follow that decision. Although the Court in OK dealt with the Commonwealth Act, there is, in this respect, no relevant difference between the Commonwealth Act and the State Act. I follow the decision in OK. 42 The applicant's third ground of challenge must be rejected.

Conclusion 43 For the reasons I have given the applicant's application must be dismissed with costs. I certify that the preceding forty-three (43) numbered paragraphs is a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.