CC Pty Ltd v Australian Crime Commission

THE ISSUES 5 The Board resolved at a meeting on 13 May 2003 in the following terms: "In relation to Money Laundering and Tax Fraud on the Commonwealth, the Board noted that carried-over NCA work would be finalised by 30 June 2003 and that in relation to the new authorisation and determination the Board resolved, in the terms of the instrument provided to the Board, to authorise the ACC to investigate the matter and determined that it shall be a special investigation." The main issue in this case is whether that resolution gave rise to a valid determination in writing of a special investigation called the Australian Crime Commission Special Investigation Authorisation and Determination (Money Laundering and Tax Fraud) 2003 (the Money Laundering and Tax Fraud Determination). 6 The Money Laundering and Tax Fraud Determination authorised the special investigation until 31 May 2004. 7 That determination was amended by the Australian Crime Commission Special Investigation Authorisation and Determination (Money Laundering and Tax Fraud) Amendment No. 1 of 2004 (the 2004 Amendment) and the Australian Crime Commission Special Investigation Authorisation and Determination (Money Laundering and Tax Fraud) Amendment No. 1 of 2005 (the 2005 Amendment). The 2004 Amendment amended the initial determination by deleting the date 31 May 2004 and substituting the date 31 May 2005; and the 2005 Amendment subsequently extended that date until 20 June 2006. 8 The applicants also challenge the validity of the 2004 Amendment and of the 2005 Amendment. Their challenge is solely based upon the contention that the Money Laundering and Tax Fraud Determination was invalid, so that no valid determination existed which could have been amended in 2004 and 2005. The resolution of that issue will therefore also resolve the challenge to the validity of the 2004 Amendment and the 2005 Amendment. 9 The applicants also challenge the validity of the Money Laundering and Tax Fraud Determination on the grounds that it did not satisfy the requirements of s 7C(1)(e) as it did not determine in writing the class or classes of persons to participate in the investigation. 10 They also directly attacked the validity of the search warrants issued on 7 November 2005 apparently under s 22 of the Act because, it was contended, the ACC failed to produce to the issuing officer, when applying for the search warrants, the material required by ss 22(3) and (5) of the Act. 11 Section 22 of the Act relevantly provides that: "(3) An issuing officer shall not issue a warrant under subsection (2) unless: (a) an affidavit has been furnished to him or her setting out the grounds on which the issue of the warrant is being sought; (b) the applicant (or some other person) has given to the issuing officer, either orally or by affidavit, such further information (if any) as the issuing officer requires concerning the grounds on which the issue of the warrant is being sought; and (c) the issuing officer is satisfied that there are reasonable grounds for issuing the warrant. (4) Where an issuing officer issues a warrant under subsection (2), he or she shall state on the affidavit furnished to him or her as mentioned in paragraph (3)(a) which of the grounds specified in that affidavit he or she has relied on to justify the issue of the warrant and particulars of any other grounds relied on by him or her to justify the issue of the warrant. (5) 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." 12 At the time the search warrants were issued, it is accepted that the issuing officer was not provided with the Money Laundering and Tax Fraud Determination, the 2004 Amendment, the 2005 Amendment or the Australian Crime Commission - Operations and Investigations (Participants) Determination 2003 (the 2003 Amendment). The 2003 Amendment amended the classes of persons entitled to participate in the special investigation.

THE FACTS 13 The relevant facts are not in dispute. 14 The Board met on 13 May 2003. Prior to the meeting there was circulated to the Board its agenda and papers for that meeting, including a paper proposing that the Board authorise a special investigation in terms of the Money Laundering and Tax Fraud Determination, and supporting materials together with a draft instrument. The draft instrument at its commencement, contained the following: "Australian Crime Commission Special Investigation Authorisation and Determination (Money Laundering and Tax Fraud) 2003 The Board of the Australian Crime Commission made this instrument under section 7C of the Australian Crime Commission Act 2002 by resolution at am/pm on 2003. Chair of the Board of the Australian Crime Commission Dated 2003" There then followed the text of the Money Laundering and Tax Fraud Determination. 15 As noted, the Board resolved at that meeting in the terms quoted in [5] above. 16 At that meeting, the Board also subsequently resolved in the following terms: "The Board resolved that the Chair of the Board is authorised, on behalf of the Board, to sign a copy of an authorisation made by the Board for the purposes of paragraph 7C(1)(c) of the ACC Act, or of a determination made by the Board for the purposes of paragraph 7C(1)(d) or subsections 7C(2) or (3) of the ACC Act, as soon as practicable after the authorisation or determination has been made."

17 At its meeting on 22 September 2003, the Board confirmed minutes of the 13 May 2003 board meeting, including the two resolutions referred to.

18 On 15 May 2003, the Chair of the Board signed the draft instrument as presented to the Board. He did so in accordance with that authorisation. He inserted the date 15 May 2003 in the blank places provided in the draft instrument. It is acknowledged (as it was when the Money Laundering and Tax Fraud Determination was subsequently published) that the date appearing on the instrument, namely 15 May 2003, is incorrect, and that the instrument was made by the resolution of the Board 13 May 2003.

CONSIDERATION: A DETERMINATION IN WRITING? 19 The applicants contend that, in those circumstances, the Money Laundering and Tax Fraud Determination is not a valid determination because the Board did not "determine in writing" that the proposed investigation is a special investigation under s 7C(3) at the meeting on 13 May 2003. Senior counsel for the applicants submitted that the effect of the two resolutions of 13 May 2003 was to authorise a two-step process: first, adoption of the draft determination; and second, perfection or completion of the process of "determining in writing" by having the Chair of the Board sign the adopted draft instrument "as soon as practicable". It was said that although the Act does not expressly oblige the Board to have the determination signed, the Board had itself created that requirement by resolving that the procedure by which it would "determine in writing" would be by having the Chair of the Board sign the draft instrument. Because the Chair of the Board did not sign the draft instrument at the time the Board resolved that the investigation was a special investigation, the applicants contended that the Board did not determine anything in writing on 13 May 2003. 20 The applicants' counsel said that the power to perfect the Board's process of determining in writing could not be delegated to the Chair of the Board to be carried out on a day when the Board does not meet at all. 21 The ACC and the Board both contend that, by adopting the draft instrument at the meeting on 13 May 2003, without more, it determined in writing in terms of the draft determination presented to it at the meeting. They place no reliance upon the resolution authorising the Chair of the Board to sign the instrument, or the Chair's signature upon the instrument or upon the subsequent minute of 22 September 2003. Senior counsel for the respondents acknowledged that the consequence of that approach is that a document in the form of the draft instrument, unsigned and apparently incomplete on its face, is the written determination. 22 The applicants relied upon the following observation of Heerey J in Parker v Federal Republic of Germany (1997) 95 A Crim R 174 at 182 (Parker) that: "[A]n obligation to 'record in writing' is satisfied when the person signs or otherwise authenticates a document which has been written, typed or printed by some other person." 23 Parker was concerned with a magistrate's statutory obligation to "record in writing" the extradition offence for which a person was eligible for surrender to the Federal Republic of Germany, under s 19 of the Extradition Act 1988 (Cth). A similar conclusion was reached by the Full Court of this Court in Wouters v Deputy Commissioner of Taxation (1988) 20 FCR 342, on the issue of whether a memorandum endorsed as "approved" by the Commissioner of Taxation constituted a "direction in writing" by the Commissioner under reg 108(1) of the Public Service Regulations 1935 (Cth). The Court observed, at 350, that "[t]he endorsement of a memorandum with a signification of approval is a familiar method of recording decisions within government". 24 It is likely that those authorities will inform the correct process of "determining in writing" for the purposes of the Act in circumstances where the determination in writing is to be done by a natural person. See, for example, s 46A(2A) of the Act, which requires the CEO of the ACC to determine in writing the head of a particular operation or investigation; and s 9(6) referred to below, which requires the Minister in certain circumstances to determine in writing whether disclosure of particular information could prejudice the safety or reputation of persons or the operations of law enforcement agencies. 25 However, whether the resolution of the Board on 13 May 2003 amounted to a determination in writing by the Board that the Money Laundering and Tax Fraud Determination was a special investigation is to be determined by a consideration of the terms of the ACC Act itself. There was clearly a decision of the Board. That is not in dispute. There was also, after that decision, a document in writing, namely the proposed draft determination as presented to the Board and the subject of its resolution. For the purposes of its authentication, the Board also authorised its Chair to sign the determination made by the Board. But to address the issue more fully it is necessary to refer to certain other features of the Act. 26 The Act does not require that the Board execute documents by way of common seal. It does not provide for the Board to have a common seal. In fact, the Act does not specify at all how the Board must "determine, in writing" that an operation or investigation is a special operation or special investigation. 27 Section 7G of the Act requires that decision-making at Board meetings be done by way of voting. That section relevantly provides: "(1) Subject to this section, a question arising at a meeting of the Board is to be determined by a majority of the votes of Board members present. … (4) The Board cannot determine that an intelligence operation is a special operation, or that an investigation into matters relating to federally relevant criminal activity is a special investigation, unless at least 9 Board members (including at least 2 eligible Commonwealth Board members) vote in favour of making the determination." 28 The respondents' contention is that, by resolving in terms of the draft instrument by vote in accordance with s 7G, the Board adopted that particular document so as to convert it to a determination, in writing, of the Board for the purposes of s 7C(3) and (4). The signature of the Chair of the Board, added to the document on 15 May 2003, was said to have no legal effect, but merely to make the determination appear "official" or authentic. 29 The determination that an investigation is a special investigation triggers certain powers and obligations. 30 One is that the Chair of the Board must provide a copy of the determination to the Inter-Governmental Committee pursuant to s 7C(5) of the Act. The Inter-Governmental Committee is then empowered under s 9(2) within 30 days to request the Chair of the Board to give further information to it in relation to the determination, and to revoke the determination in certain circumstances: s 9(7). There is a process by which the Chair of the Board must provide further information to the Inter-Governmental Committee, unless the provision of that information could prejudice the safety or reputation of persons or the operations of law enforcement agencies: s 9(4). In that event, the Inter-Governmental Committee may refer its request for information to the Minister. Section 9(6) provides: "If the Committee refers the request to the Minister, the Minister: (a) must determine in writing whether disclosure of the information could prejudice the safety or reputation of persons or the operations of law enforcement agencies; and (b) must provide copies of that determination to the Chair of the Board and the Committee; and (c) must not disclose his or her reasons for determining the question of whether the information could prejudice the safety or reputation of persons or the operations of law enforcement agencies in the way stated in the determination." 31 Extensive investigative powers of the ACC under the Act are also enlivened by a valid determination that an investigation is a special investigation. Warrants may be issued under s 22 authorising entry upon premises and the search and seizure of things seized. The warrant itself must include a statement of the purpose for which it is issued and include a reference to the special ACC investigation: see generally s 22. Part II Div 2 of the Act provides for an examiner to conduct an examination for the purpose of a special ACC investigation. For that purpose, the examiner is empowered to summon witnesses and to take evidence: s 28. Any such summons or notice to produce documents must be accompanied by a copy of a determination of the Board that the investigation is a special investigation: s 28(2). The person summonsed may be restricted from disclosing the existence of the summons other than for the purpose of getting legal advice: s 29A. Failure to comply with a summons, or a notice to produce documents, is a significant criminal offence: s 30. Disclosure of the contents of a summons in certain circumstances is also a significant criminal offence: s 29B. The right to decline to answer questions on the ground that to do so may tend to incriminate the person is significantly abrogated: s 30(4). 32 The purpose of the determination that an investigation is a special investigation being in writing is clear enough. It is to secure certainty as to the terms of the determination, so that the obligations arising from the determination can be implemented and the consequences arising from actions taken by reason of the determination can be properly validated. The obligations include notification to the Inter-Governmental Committee, and the consequences include the potential exercise of investigative powers and, in particular, the service of the determination with any summons or notice to produce documents. They affect both an examiner under the Act, and a person served with a summons issued by an examiner under the Act. 33 That purpose was satisfied by the resolution of the Board on 13 May 2003 in relation to the draft instrument which it considered. Upon its resolution, the draft instrument became the Board's determination in writing. The instrument could not thereafter be changed other than by subsequent resolution of the Board. The obligation of the Chair under s 7C(5) was activated. There was no scope for uncertainty about what the determination was. The examiner had a document in writing to found the exercise of powers available under the Act. In its terms, the instrument was to accompany any summons under s 28 so that a person being examined would be informed as to the nature of the special investigation. 34 Moreover, in the absence of any other expressed procedure in the Act for the Board to make a determination in writing, its minutes record and reveal its decisions. They do so in this instance. Its minutes confirm in writing that the Money Laundering and Tax Fraud Determination was made on 13 May 2003. 35 It is important to recognise the difference between the making of a determination in writing on the one hand, and its authentication on the other. The subsequent resolution of the Board referred to in [16] above recognises that. The authorisation given to the Chair of the Board to sign the determination as soon as practicable after it was made provides a means by which those affected by its making might be satisfied as to its authenticity. As the respondents recognised by their concession, the process of authentication is a separate step from the making of the determination in writing. In the event that the authenticity of a determination in writing became an issue, the status of such a determination might be proved in other ways (such as by the proof of the minutes of the relevant meeting), and conversely the authentication by production of the determination in writing apparently bearing the Chair's signature would not necessarily establish authenticity in the face of other evidence. 36 The determination, as it stood at the time of the passing of the resolution set out in [5] above, was not an ideal document. It did not record the date and time at which it was made and it had the distinct appearance of a draft. It does not follow, however, that the determination was not made in writing. The determination was still capable of communicating to the Inter-Governmental Committee, the Minister, the examiners, and persons summonsed during the course of the investigation the nature and purpose of the investigation and the particulars of the way it was to be conducted. 37 I have not overlooked the view I expressed above that, for the purposes of s 9(6) and s 46A(2A) of the Act, the determination in writing of the Minister and of the CEO of the ACC respectively must be signified or effected by a signature or other mark of the relevant natural person. It is generally expected that the same expression in different provisions of an enactment will bear the same meaning: see e.g. per Mason J in Registrar of Titles of the State of Western Australia v Franzon (1975) 132 CLR 611 at 618. What s 7C(3) requires to constitute a determination in writing by the Board must however be ascertained having regard to the purposes of that particular provision, and the absence of any legislative prescription other than s 7G as to how the Board may do so, and the absence of any provision for the Board to have a common seal. In the circumstances, I do not think my conclusion reflects any inconsistency in the use of the requirement of a determination in writing in the provisions of the Act. In any event, the approach to construction requiring such consistency is not required to be applied inevitably but in the light of the relevant provisions: per Gibbs CJ in McGraw-Hinds (Aust) Pty Ltd v Smith (1978) 144 CLR 633 at 643; and per Deane, Dawson and Gaudron JJ in Murphy v Farmer (1988) 165 CLR 19 at 26-28. 38 For those reasons, in my judgment, the Board of the ACC on 13 May 2003 made the Money Laundering and Tax Fraud Determination in writing. 39 In view of the conclusion I have reached, it is not necessary to consider what I consider to be a potentially available alternative means to the same conclusion. That means is to regard the resolution of the Board referred to in [16] above as the Board deciding the means by which its decisions, required to be made in writing, may be so made. There is no immediately apparent reason why the Board could not so resolve. There is also no immediately apparent reason, either from the terms of the Act or as a matter of practice, why the alternative that all (or all supporting) members of the Board, or all those present at the meeting at which a particular determination was made, should have to sign the document for it to constitute a determination in writing of the Board. However, as that was not argued by the respondents, I do no more than note the possible argument. 40 I note in that regard that, as counsel for the applicants pointed out, there are several earlier decisions of this Court concerning the Money Laundering and Tax Fraud Determination, in which the determination is described as having been made on 15 May 2003 (Hogan v Australian Crime Commission (2005) 154 A Crim R 336; S v Australian Crime Commission (2005) 114 FCR 431; S v Australian Crime Commission (2006) 149 FCR 361; P v Board of the Australian Crime Commission (2006) 151 FCR 114). No issue was apparently raised by the respective applicants in those earlier proceedings regarding the date on which the determination was made. That may reflect the view that the determination in writing of the Board was perfected by the Chair's authentication of the relevant resolution.

CONSIDERATION: SPECIFICATION OF THE CLASS OF PERSONS 41 In an apparent attempt to comply with s 7C(1)(e), the Money Laundering and Tax Fraud Determination included the following: "5. Determination Pursuant to paragraph 7C(1)(d) and subsection 7C(3) of the Act, the Board: (a) has considered whether ordinary police methods of investigation into the matter mentioned in Schedule 1 relating to federally relevant criminal activity are likely to be effective; and (b) determines that the investigation mentioned in Schedule 1 is a special investigation. 6. Classes of persons to participate in investigation Pursuant to paragraph 7C(1)(e) of the Act, the classes of persons to participate in the investigation mentioned in Schedule 1 are those mentioned in Schedule 2." 42 Counsel for the applicants noted that cl 5 of that determination is expressed as being a determination pursuant to s 7C(1)(d) and s 7C(3), but that the word "determination" is not used in cl 6 when addressing s 7C(1)(e). He contended that, therefore, there has been no determination in any event as required by s 7C(1)(e). 43 That is a technical contention. It is not suggested that cl 6 of the instrument and the classes of persons mentioned in Sch 2 to the instrument, including the classes of persons mentioned in the 2003 Amendment, did not adequately identify the class or classes of persons to participate in the investigation. 44 In my view, the contention is without merit. By resolving in terms of the draft instrument which included cl 6 and Sch 2, the Board did "determine, in writing, the class or classes of persons to participate in" the investigation pursuant to s 7C(1)(e). The fact that the Board did not specifically use the word "determine" in cl 6 does not change the character of the Board's act, which was to decide, or conclude, that the persons to participate in the special investigation would be those listed in Sch 2.

CONSIDERATION: COMPLIANCE WITH SECTION 22? 45 The applicants contended that, in order to be satisfied of the matters required to be stated in a search warrant, an issuing officer must be fully apprised of the relevant determination in relation to which the warrant is issued. It was argued, therefore, that the failure to provide the Money Laundering and Tax Fraud Determination and the 2003, 2004 and 2005 Amendments to the issuing officer or to recite, in the affidavit in support of the application, all of the relevant determinations, meant that a jurisdictional fact necessary to the issue of each of the search warrants was not met, so that the power to issue the warrants was not enlivened. 46 The Act does not require the ACC to furnish an issuing officer with a copy of the relevant determination or determinations when applying for a search warrant under s 22. Section 22(3) expressly states the materials which must be provided to the issuing officer. They are firstly, an affidavit setting out the grounds on which the warrant is being sought; and secondly, "such further information…as the issuing officer requires" concerning those grounds. Had Parliament intended that the issuing officer be given a copy of the relevant determination in every case, it could easily have said so. An issuing officer may obtain a copy of the relevant determination by requesting that document pursuant to s 22(3)(b). In the absence of such a request, the ACC cannot be said to have failed to comply with the Act. 47 Similarly, there is no requirement in the Act that a list of all amendments to the relevant determination be recited in the affidavit in support of the search warrant application. The Act requires only that the warrant itself contain a reference to the relevant investigation. For the reasons given above, I see no reason to infer any such requirement from the terms of s 22.

CONCLUSION 48 For those reasons, in my judgment the application must be dismissed. 49 There is one further matter which I should mention. Section 16 of the Act provides: "Limitation on challenge to Board determination If: (a) an intelligence operation is determined by the Board to be a special operation; or (b) an investigation into matters relating to federally relevant criminal activity is determined by the Board to be a special investigation; then, except in a proceeding instituted by the Attorney-General of the Commonwealth or the Attorney-General of a State, any act or thing done by the ACC because of that determination must not be challenged, reviewed, quashed or called in question in any court on the ground that the determination was not lawfully made." 50 The parties are agreed that s 7C imposes necessary procedures upon the exercise of the function of the Board to determine that an investigation is a special investigation. Consequently, it was accepted that notwithstanding s 16, if the Board had not complied with those prescribed procedures, it had no jurisdiction to make the determination in the terms of the instrument: see Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476. 51 It is also strictly unnecessary to consider whether the privative clause in s 16 of the Act would prevent the applicants from challenging the validity of the warrants on the ground that they did not comply with s 22 of the Act. I have rejected their primary contention based on s 22. Section 16 purports to protect any "act or thing done by the ACC" from review on the ground that a determination under s 7C(3) was not lawfully made. Argument on this point focussed on whether the "act or thing" being challenged was an "act or thing done by the ACC", or an act or thing done by the issuing officer (who, it was agreed, is not part of the ACC). However, in relation to this argument, in any event, s 16 is apparently inapplicable because the particular complaint that the material provided to the issuing officer was inadequate is not necessarily premised on the proposition that the determination itself was not lawfully made. I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Counsel for the Applicant: ML Abbott QC and CD Bleby

Solicitor for the Applicant: Patsouris & Associates

Counsel for the Respondent: SJ Maharaj QC and R Prince

Solicitor for the Respondent: Australian Crime Commission