CC Pty Ltd v Australian Crime Commission

Judgment (15 paragraphs)

[1]

INTRODUCTION 1 The appellants appeal from the whole of a judgment given by a judge of the Court on 25 January 2007 (CC Pty Ltd v Australian Crime Commission (No 2) [2007] FCA 16). In the proceeding at first instance, the appellants challenged the validity of seven search warrants, the issue of which was procured by the first respondent, the Australian Crime Commission ("the ACC"). The warrants purported to authorise the executing officer to enter certain premises of the appellants and there to search for and seize things of a particular kind connected with a "special ACC investigation". 2 The appellants' argument before his Honour and before us was that the warrants were invalid because the underlying special ACC investigation had not been validly launched (to use a neutral term). Whether it had or had not been depends on whether the second respondent, the Board of the ACC ("the Board"), had authorised the special investigation "in writing", and determined "in writing" that it was a special investigation in conformity within s 7C of the Australian Crime Commission Act 2002 (Cth) ("the Act"). 3 The appellants sought at first instance declaratory and injunctive relief which would have prevented the ACC from examining or dealing with the things that had been seized during the execution of the search warrants on 18 November 2005.

[2]

THE LEGISLATION 4 Part II of the Act establishes the ACC and the Board. It is s 7B within that Part that establishes the Board. The Board consists of 14 office holders. The Commissioner of the Australian Federal Police is the Chair of the Board. 5 At the relevant time, s 7C provided: "7C Functions of the Board (1) The Board has the following functions: (a) to determine national criminal intelligence priorities; (b) to provide strategic direction to the ACC and to determine the priorities of the ACC; (c) to authorise, in writing, the ACC to undertake intelligence operations or to investigate matters relating to federally relevant criminal activity; (d) to determine, in writing, whether such an operation is a special operation or whether such an investigation is a special investigation; (e) to determine, in writing, the class or classes of persons to participate in such an operation or investigation; (f) to establish task forces; (g) to disseminate to law enforcement agencies or foreign law enforcement agencies, or to any other agency or body of the Commonwealth, a State or a Territory prescribed by the regulations, strategic criminal intelligence assessments provided to the Board by the ACC; (h) to report to the Inter‑Governmental Committee on the ACC's performance; (i) such other functions as are conferred on the Board by other provisions of this Act. Note: The CEO must determine, in writing, the head of an intelligence operation or an investigation into matters relating to federally relevant criminal activity: see subsection 46A(2A). Special operations (2) The Board may determine, in writing, that an intelligence operation is a special operation. Before doing so, it must consider whether methods of collecting the criminal information and intelligence that do not involve the use of powers in this Act have been effective. Note 1: See also subsection 7G(4) for the voting rule that applies in relation to such a determination. Note 2: See also Division 2 for the examination powers available if there is a special operation. Special investigations (3) The Board may determine, in writing, that an investigation into matters relating to federally relevant criminal activity is a special investigation. Before doing so, it must consider whether ordinary police methods of investigation into the matters are likely to be effective. Note 1: See also subsection 7G(4) for the voting rule that applies in relation to such a determination. Note 2: See also Division 2 for the examination powers available if there is a special investigation. Further details (4) A determination under subsection (2) or (3) must: (a) describe the general nature of the circumstances or allegations constituting the federally relevant criminal activity; 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 Commonwealth, a law of a Territory or a law of a State but need not specify the particular offence or offences; and (c) set out the purpose of the operation or investigation. Informing the Inter‑Governmental Committee (5) The Chair of the Board must, within the period of 3 days beginning on the day a determination under subsection (2) or (3) is made, give a copy of the determination to the Inter‑Governmental Committee. When determination takes effect (6) A determination under subsection (2) or (3) has effect immediately after it is made." [Our emphasis]

8 Purpose of the investigation The purpose of the investigation is: (a) to collect and analyse criminal information and intelligence relating to the federally relevant criminal activities, to disseminate that information and intelligence in accordance with the Act and to report to the Board; and (b) to identify and apprehend persons involved in the federally relevant criminal activities, to collect evidence about those activities and to reduce the incidence and effect of those activities; and (c) to make appropriate recommendations to the Board about reform of: (i) the law relating to relevant offences; and (ii) relevant administrative practices; and (iii) the administration of the courts in relation to trials of relevant offences. Schedule 1 was headed "Authorised investigation" and Sch 2 was headed "Classes of persons". 9 Draft minutes of the meeting of 13 May 2003 in which Resolution 5 and Resolution 10 were recorded were made at a time not identified in the evidence. However, in the minutes of the Board's meeting of 22 September 2003 it was recorded that the Board confirmed the draft minutes of the 13 May 2003 meeting (subject to one matter not presently relevant). 10 Although Resolution 5 referred to "the instrument provided to the Board" the document that had been provided to the Board was only a draft that had no effect until Resolution 5 was passed. We will use the expression "draft Instrument" and "adopted Instrument" to refer respectively to the same document before and after Resolution 5 was passed. (It is of interest that on 22 September 2003, the Board confirmed the "draft Minutes of the 13 May 2003 meeting" (our emphasis)). 11 On 15 May 2003, the Chair of the Board endorsed the adopted Instrument, apparently pursuant to Resolution 10, with a certificate signed by him that the Board of the ACC "made this instrument under section 7C of the Australian Crime Commission Act 2002 by resolution at 8.03 am on 15 May 2003". That date was incorrect. As noted earlier, Resolution 5 was passed on 13 May 2003. The Chair had erroneously inserted the date, and apparently the time, of his signing the certificate. The respondents do not rely on the signing by the Chair, which they submit to be in the nature of a certification or authentication of an Instrument previously made by the Board. We agree. Either the Board made the relevant determination in writing on 13 May 2003 or it did not make it in writing at all. 12 His Honour at first instance identified the main issue in the case as being whether Resolution 5 gave rise to a valid determination in writing of the special investigation called the Australian Crime Commission Special Investigation Authorisation and Determination (Money Laundering and Tax Fraud) 2003 ("the 2003 Determination"). The 2003 Determination authorised the special investigation until 31 May 2004. There were two subsequent amendments substituting 31 May 2005 for 31 May 2004, and substituting 20 June 2006 for 31 May 2005 respectively. The appellants challenged the validity of the two amendments, on the basis that the 2003 Determination was invalid, so that there was no valid determination that could have been the subject of the extensions. 13 The appellants also challenged the validity of the 2003 Determination on the ground that it did not satisfy the requirement of s 7C(1)(e) of the Act (set out in [5] above). It will be recalled that para 6 of, and Sch 2 to, the draft Instrument identified the classes of persons to participate in the investigation. The point, again, was that, according to the appellants' submission, the Board had not determined those classes of persons "in writing" as required by s 7C(1)(e). 14 Before his Honour, the appellants also directly challenged the validity of the search warrants themselves, apparently under s 22 of the Act, on the ground that the ACC failed to produce to the issuing officer when applying for the warrants the material required by ss 22(3) and (5) of the Act. His Honour's rejection of this challenge was not the subject of the appeal. 15 The issue posed in the appeal is the narrow one whether the adopted Instrument constituted a determination "in writing" as required by s 7C(1)(d) and (e) of the Act.

The draft/adopted Instrument was in writing. 20 Strictly speaking, a determination, understood to be a decision or resolution, cannot be either in writing or oral. That which can be in writing or oral is only the manifestation of, in the case of an individual, a mental step or, in the case of a composite body which makes decisions, by majority vote (see [24] below), the outcome of a voting process. What the statute requires is that there be writing that purports to be or to represent the outcome of a relevant voting process of the Board. 21 It is therefore necessary to consider the content of the draft/adopted Instrument. The form of the contemplated certification does not form part of it. Paragraphs 4, 5 and 6 of the draft/adopted Instrument refer to ss 7C(1)(c), (d) and (e) of the Act. Their operative terms are expressed in the present tense. That is to say, they purport to be the embodiment of a present authorisation and two present determinations. Thus, according to para 5(b), pursuant to s 7C(1)(d) and s 7C(3) of the Act, "the Board … determines that the investigation mentioned in Schedule 1 is a special investigation". This purports to be a determination by the Board in writing that conforms exactly to s 7C(1)(d) and s 7C(3) of the Act. In our view, the Act does not require more. 22 While para 6 does not include words of the kind "the Board determines", we do not think this matters. The present tense of the verb "determines" in para 5(b) makes it clear that the identification of the classes of persons to participate in the investigation is part of the same determination. 23 The "in writing" requirement is to be understood in the particular statutory context in which it occurs. The composition of the Board is identified in s 7B(2) of the Act. The Board comprises 14 members, including the Commissioner or head (however described) of the police force of each State and of the Northern Territory. The Commissioner of the Australian Federal Police is the Chair: s 7B(3). Sections 7D-7F provide for the convening of Board meetings, presiding at Board meetings, and the quorum at Board meetings. 24 Section 7G provides that a question arising at a meeting of the Board is to be determined by a majority of the votes of Board members present, but the Chief Executive Officer of the ACC ("CEO"), although a member of the Board, is not entitled to vote. Subsection 7G(4) provides, relevantly, that the Board cannot determine that an investigation into matters relating to federally relevant criminal activities is a special investigation, unless at least nine Board members, including at least two eligible Commonwealth Board members, vote in favour of making the determination. 25 Section 7J provides for the passing of resolutions otherwise than at a meeting of the Board. That section provides for a reference of a proposed resolution to all members of the Board and for indications by telephone or other mode of communication to the Chair of the Board, whether they are in favour of the proposed resolution. A resolution favoured by a majority (not including the CEO), or, if the resolution is of the kind referred to in s 7G(4) (see [24] above), by at least nine Board members (not including the CEO but including at least two eligible Commonwealth Board Members), is as valid and effectual as if it had been passed at a Board meeting duly convened and held. 26 The statutory provisions outlined above demonstrate the Australia wide nature of the Board. Those provisions suggest a purpose of the requirement that determinations of the kind referred to be "in writing". That purpose is that there should be certainty as to what "the Board" has determined. Particular reasons why this is important are: · that the existence of a special investigation (or operation) is the foundation that enlivens other powers given by the Act (such as the power to apply for and obtain a search warrant under s 22, as in the present case, and the power to conduct an examination under Div 2 of Pt II of the Act); · that the determination has effect immediately after it is made (s 7C(6)); · that the Chair of the Board must, within three days beginning on the day of the making of the determination, give a copy of it to the Inter-Governmental Committee referred to in ss 8 - 9 of the Act (s 7C(5)); and · that a copy of the determination must accompany a summons requiring a person to appear before an examiner and to give evidence and to produce documents or other things (s 28(2)). All of these reasons are satisfied by the adopted Instrument. 27 The appellants point out that no new writing came into existence at the Board meeting on 13 May 2003. They submit that this shows that there was no determination "in writing" on that occasion. We respectfully disagree. The draft Instrument had been prepared in advance of the meeting in contemplation of its being adopted at the meeting, as it was. On its face it had a present operation, but it would have been improper and misleading for a person to have treated or used the draft Instrument as having an operation according to its terms prior to the passing of Resolution 5. The fact that a person might have acted improperly in that way does not signify that the document was not a determination in writing once Resolution 5 was passed. Once that resolution was passed the draft Instrument became the adopted Instrument and operated according to its terms. Thus, in one sense a new writing did come into existence upon the passing of Resolution 5, namely, the adopted Instrument. Notwithstanding its mode of expression, the draft Instrument had been nothing of legal consequence, but the adopted Instrument that came into existence upon the passing of Resolution 5 was of legal consequence and could be taken at face value. 28 The appellants' complaint that no new writing came into existence on 13 May 2003 establishing a link between the Board's decision and the adopted Instrument is really a complaint that that document, standing alone, does not provide the best evidence that the Board had acted. It is true that the Board might have adopted a procedure that resulted in more cogent evidence that the Board's determination was in the adopted Instrument. For example, the draft Instrument might have been marked in a distinctive way and the resolution might have said something like "That the Board make the determinations recorded in the document marked …". While such better evidence is no doubt desirable, the fact is that the Act does not say anything akin to "in a document signed by or on behalf of the Board": it requires nothing more or less than that the determination be "in writing", a requirement that was satisfied in the present case. 29 The absence of a date within the adopted Instrument is not fatal. Section 7C(6) of the Act provides that a determination under subs (2) or (3) has effect immediately after the determination is made. The statutory provision is reflected in para 2 of the Instrument (set out in [8] above). In the present case, the provision and the paragraph mean immediately after the draft Instrument was converted by Resolution 5 into the adopted Instrument. If the Chair's endorsed certification had been correct rather than incorrect, a reader would have rightly understood that the present tense verb "determines" in para 5(b) of the adopted Instrument spoke as of 13 May 2003. 30 The absence of a date of making does not go to the question whether the determination was "in writing". The lack of a date would not have been overcome even if all members of the Board had signed the document, yet in that case it could hardly be suggested that the Board did not "determine in writing". 31 The appellants referred to B (A solicitor) v Victorian Lawyers RPA Ltd (2002) 6 VR 642 in which Charles and Batt JJA, with whom Ormiston JA agreed, said (at [39]) that a requirement of s 313 of the Legal Practice Act 1996 (Vic) that a certain delegation be "in writing" was not satisfied by the minuting of the resolution or the signing of the minutes at the next meeting. With respect, we agree with their Honours. The expression "in writing" insists that the writing purport on its face to be an embodiment of the present or contemporaneous delegation or determination in question. Minutes of something that happened at a meeting previously held do not meet this description. The present respondents place no reliance on the minuting of Resolution 5 or on subsequent adoption of the minutes at the meeting held on 22 September 2003. Neither do we in our reasons above.

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Judgment (15 paragraphs)

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